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Democracy's 
International  Law 

— BY— 

Jackson  H.  Ralston 


American  Agent,  Pious  Fund  Case,  at  the 
Hague,  and  Umpire  Italian-Venezuelan 
Mixed  Claims  Commission ;  Author  Inter- 
national Arbitral  Law  and  Procedure; 
Editor  Venezuelan  Arbitrations  of  1903, 
etc. 


JOHN  BYRNE  &  CO. 

Washington,  D.  C. 

19  2  2 


Copyright,  19'£2 

By  JACKSON  H.  BALSTON 

All  rights  reserved. 


The.   Advertiser,  Annapolis,  Maryland 


I  To 

^  My  Wife 

SARA  B.  RANKIN  RALSTON 

z  Whose  sympathies 

have  accompanied 
^  the  preparation  of  this  ivo\rJc. 


^ 
^ 


V 

^ 


o 


2795SS 


31  (oO 


TABLE  OF  CONTENTS 

Chapter  I 

How  Eiiiidameiital  Intenjatioiial  Law  is  to 

be  Discovered 1 

Chaptek  II 
Laws  of  War 22 

Chaptek  III 
Systematizing  War 29 

Chaptek  IV 
International  Sovereignty 38 

Chapter  V 
The  Meaning  of  ' '  National  Interests  " 47 

Chapter  VI 
Superficiality  of  Today's  International  Law      57 

Chapter  VII 

Imperialistic  Adventure  Under  International 

Law 69 

Chapter  VIII 

Deficiencies  of  International  Courts  Under 

Present  Conditions 84 

Chapter  IX 

Should   any   International   Dispute  be  Re- 
served from  Arbitration! 102 


Chaptf.k  X 
Some  Supposed  Just  Causes  of  AVar 113 

Chapter  XI 
Essentials  of  Peace  and  War 125 

Chapter  XII 

Some  Tendencies  Pressing  Toward  Justice 

and  Peace  1 38 

Chapte*:  XIII 
Basis  of  a  Democratic  Law  of  Nations 147 

Chapter  XIV 
Resume  of  Our  Conclusions 159 


FOREWORD 

Of  late  tlie  very  term  "International  Law"  lias 
fallen  into  disfavor.  Men  have  felt  that  as  now 
taught  such  supposed  law  had  no  fixity;  that  its 
assumed  principles  were  only  laid  down  to  be 
flouted;  that  it  was  nerveless  and  without  an 
animating  soul;  that  it  was  but  a  paper  creation. 
Yet  it  is  the  feeling  of  the  writer  that  there  does 
exist  such  a  thing  as  true  International  Law ;  that 
its  principles  cannot  be  overlooked  with  impunity ; 
that  it  moves  with  the  silence  and  certainty  of  the 
law  of  gravitation;  that,  without  having  been 
written  down,  its  violations  bring  punishment  to 
all  offending  nations.  The  failure  to  read  the 
secret  of  its  existence  and  to  study  the  lessons  it 
would  teach  and  profit  by  them,  accounts  for  the 
prostrate  world. 

Something  has  been  learned  of  the  theory  of 
Democratic  Government.  The  little  knowledge  so 
acquired  has  been  laid  aside  by  writers  on  Inter- 
national Law  as  not  pertinent  to  their  purpose.  In 
so  doing  they  have  ignored  the  only  way  of  learn- 
ing true  International  Law — by  tracing  the  con- 
sistent progress  of  Law  from  the  small  unit  to  the 
large.  To  point  out  this  error;  to  indicate  the 
manner  in  which  the  world's  puzzle  must  be  solved, 
is  the  purpose  of  this  little  book.    It  can  not  more 


than  suggest  a  line  of  work  for  the  future.  Some 
sucJ]  scheme  of  endeavor  must  be  followed  if  we 
would  apprehend  the  noblest  branch  of  legal 
science  yet  to  be  examined  critically  by  the  human 
intellect. 

Herein  it  is  also  souglit  to  show  how  vitally  the 
common  man  is  affected  by  International-  Law  and 
his  material  dependence  upon  its  understanding. 

In  the  past  we  have  been  but  charlatans,  and 
have  forgotten  that  "Swiftiy  the  charlatan  goes. 
Is  it  dark?  He  trusts  to  his  lantern.  Slowly  the 
Statesman,  but  safe,  timing  his  feet  by  the  stars." 

The  writer  desires  to  express  his  appreciation 
of  thoughtful  aid  received  in  the  preparation  of 
this  book  from  Mr.  Arthur  Deerin  Call,  Secretary 
of  the  American  Peace  Society,  and  of  valuable 
comments  and  suggestions  from  Mr.  Charles  F. 
Nesbit. 

Jackson  H.  Ralston. 
Washington,  1).  C, 

June,  1922. 


Democracy's 
International    Law 


CHAPTER  I 


HOW   FUNDAMENTAL  INTERNATIONAL  LAW  IS 
TO  BE  DISCOVERED 

Of  late  much  has  been  said  with  regard  to  Inter- 
national Law  and  its  teachings.  We  are  some- 
times told  about  a  given  proposition  that  Grotius 
says  this ;  Pufendorf  says  that,  and  Oppenheim  or 
Hall  says  the  other,  as  if  the  mere  asseveration  by 
any  man,  however  distinguished,  that  a  certain 
thing  is  International  Law  makes  it  such. 

The  International  Law  writers  have  not  thought 
to  examine  the  characteristics  of  law  in  general. 
They  have  not  sought  to  discover  real  law  through 
its  natural  manifestations  as  applied  to  interna- 
tional affairs.  They  have  not  distinguished  be- 
tween that  whieli  is  fundamental  and  that  which  is 
merely  incidental,  between  rules  of  law  and  mere 
rules  of  order.  It  may  in  truth  be  said  that,  after 
several  centuries  of  repetitions  of  doctrines  and 
multiplications  of  instances,  no  consistent  theory 
of  International  Law  laying  down  the  norm  to- 
ward which  all  things  must  work  has  yet  been  pro- 
pounded. Mucli  learning  without  actual  thought 
hath  made  us  mad,  in  several  senses  of  the  word. 


2  democeacy's  international  law 

while  failing  to  carry  us  far  on  the  road  to  justice 
in  iuteriiational  affairs  which  must  be  traveled  by 
the  human  race  if  it  is  to  profit  by  Internationa] 
Law. 

International  Law  writers  have,  for  instance, 
been  obsessed  with  the  idea  that  war  is  a  natiira] 
condition  as  between  nations,  and  that  its  laws 
are,  or  by  right  may  be,  laid  down  l)y  the  combat- 
ants, even  to  the  injury  of  neutral  nations  The 
idea  has  governed  them  that  war  has  existed  with 
greater  or  less  frequence  since  early  in  the  history 
of  organized  societies;  that  it  is  a  necessary  evil; 
that  it  is  not  within  the  power  of  man  to  stay  it, 
and  that  all  we  may  hope  to  obtain  is  some  mitiga- 
tion of  its  cruelties  and  some  ti'ifling  diminution 
in  its  recurrence. 

If  the  internationalists  had  taken  tlie  position 
that  war  is  ordinarily  an  outrageous  and  contemp- 
tible thing;  that  its  existence  is  an  entirely  human 
concern;  that  usually  its  aims  are  sordid  and  that 
its  causes  are  ascertainable;  that  the  duty  of  In- 
ternational Law  is  to  discern  its  causes  and  as  far 
as  possible  to  remove  them ;  that  the  germ  is  to  be 
sought  with  the  same  careful,  painstaking  deter- 
mination which  i)h.ysicians  have  devoted  to  the  dis- 
covery of  the  yellow  fever  or  typhoid  germ,  and 
that  this  is  one  of  the  proper  functions  of  the  In 


DISCOVEEING  INTEKNATIONAL  LAW  O 

ternatioiial  Law  student,  then  some  little  advance- 
ment might  have  been  made. 

We  would  scoff  at  the  medical  science  which 
should  say,  ''We  can  not  isolate  the  germ  of  small- 
pox ;  we  can  not  prevent  its  transmission  from  one 
human  being  to  another;  we  can  not  fortify  the 
system  against  it,  but  we  shall  take  great  credit  to 
ourselves  if,  in  occasional  instances,  we  can  pre- 
vent the  spread  of  the  disease  from  the  body  to 
the  face."  Relatively  speaking,  nevertheless,  the 
results  up  to  the  present  time  of  the  study  of  In- 
ternational Law  have  been  scarcely  more  import- 
ant. We  felicitate  ourselves  because  we  have  es- 
tablished Hague  courts  for  the  determination  of 
questions  about  which  nations,  or  rather  the  inter- 
ests controlling  nations,  are  comparatively  indif- 
ferent; but  we  have  reserved  the  right  to  go  to 
war  over  things  which  the  managing  minority- 
have  regarded  as  important,  and  when  the  great 
majority  are  persuaded  that  their  patriotic  inter- 
ests are  involved. 

What  principles  should  our  study  follow? 

Some  years  ago  a  former  United  States  Sena- 
tor, in  speaking  upon  the  subject  of  Arbitration,  in 
an  address  delivered  before  the  American  Society 
of  International  Law,  said:  "We  have  been  told 
by  an  international  tribunal  that  by  International 


4  democracy's  international  law 

Law  the  conquering  nation  alone  may  fix  the  pen- 
alty to  be  paid  by  the  defeated  nation  and  that 
there  is  no  principle  known  to  that  law  which  gives 
a  third  nation  a  right  to  object."  This  is  doubt- 
less a  correct  statement  of  what  is  called  Interna- 
tional Law ;  but  it  is  not  law.  That  which  is  fun- 
damentally law  is  universal  as  to  time  and  place. 
All  else  is  no  more  than  usage.  All  that  can  be 
truly  said  by  the  writers  on  the  subject  of  Inter- 
national Law  with  regard  to  the  practice  above 
mentioned  is  that  observation  has  shown  that 
usually  the  conquering  nation  does  prescribe  a 
penalty  to  be  paid  by  the  defeated  country.  This 
is  a  statement  of  fact,  not  a  principle  of  law.  Let 
us  assume  that  men  have  observed  that  when 
a  robber  in  the  pursuit  of  his  profession  knocks 
down  a  man  he  usually  takes  from  him  his  purse. 
The  fact  would  be  clearly  recognized,  but  would 
not  be  incorporated  in  the  law  of  felony  We  shall 
note  meanwhile  that  in  the  forum  of  arms,  the 
felonious  nation  is  quite  as  likely  to  be  successful 
as  the  unoffending  one. 

On  the  shores  of  the  Arctic  Sea  in  the  North 
of  Siberia  dwell  tribes  which  kill  their  elders 
when  they  become  helpless,  and  these  aged  ones 
expect  this  fate  and,  perhaps,  they  expect,  further, 
to  be  eaten.  The  man  who  would  say  that  by  their 
law  the  aged  are  killed  and  eaten  would  be  guilty 


DISCOVERING  INTERNATIONAL  LAW  0 

of  a  misuse  of  words.  There  is  simply  a  usage  of 
this  kind.  Assume  that  hunting  and  fishing- 
are  unusually  good  with  a  particular  family,  and 
that  such  family  preserves  instead  of  destroying 
and  eating  its  elders,  could  it  be  said  that  a  law 
has  been  violated? — Scarcely.  A  custom  of  that 
time  and  place  would  have  been  departed  from, 
but  no  essential  human  rights  would  have  bec-n 
lost ;  rather  the  contrary. 

Going  several  thousand  miles  further  south.,  we 
find  among  the  Chinese  a  careful  preservation  of 
the  old,  coupled  with  the  worship  of  ancestors. 
But  if  a  man  fails  so  to  worship,  he  has  violated  no 
law,  and  he  receives  only  such  supernatural  pun- 
ishment as  may  afflict  liim. 

At  the  time  of  the  l^attle  of  Agincourt.  wlien  a 
soldier  of  the  English  king  captured  a  member  of 
the  French  nobility,  the  individual  captor  held  the 
individual  captive  as  his  personal  prize  and  re- 
stored him  to  liberty  upon  payment  of  a  suitable 
ransom.  This  was  the  usage  of  war,  and  with  en- 
tire propriety,  judging  by  i3resent  day  standards, 
might  have  been  written  down  by  the  interna- 
tionalists of  that  time  as  a  law  of  war.  But  no 
X)Ower  compelled  a  British  captor  to  insist  on  ran- 
som, and  no  human  right,  or  any  human  law, 
would  have  been  violated  if  he  had  set  his  captive 
free. 


6  democracy's  in^ternational  law 

In  the  time  of  which  we  speak  and  for  long 
after,  looting  by  the  soldiers  was  considered  en- 
tirely proper.  At  the  present  time  looting  by  gov- 
ernments at  least  is  practiced.  But  no  law  ever 
gave  a  right  of  private  or  public  loot.  To  say, 
therefore,  that  either  one  is  the  product  of  law  or 
permissible  by  law,  is  to  do  a  violence  to  lan- 
guage. All  that  can  be  said  is  that  men  at  war 
have  varied  their  actions  from  century  to  century, 
and  their  actions  as  so  varied  have  been  in  souie 
degree  usages  which  one  might  expect  to  encoun- 
ter in  the  progress  of  the  disease  called  war. 

Consider  what  law,  measured  by  the  natural 
sciences,  and  save  as  varied  by  human  character- 
istics, really  is.  If  we  study  the  law  of  gravita- 
tion we  shall  conclude  that  it  possesses  the  ele- 
ment of  invariability  from  century  to  century. 
"We  shall  discover  that  it  operates  uniformly  under 
like  conditions  everywhere.  We  perceive  that  it 
is  inescapable.  When  challenged,  it  will  assert  it- 
self. The  same  might  be  said  with  regard  to  the 
principle  of  conservation  of  energy  or  any  other 
of  the  great  natural  laws.  We  have  detected  these 
laws  by  being  in  the  first  instance  struck  by  events 
which  have  indicated  an  anterior  cause,  and,  from 
the  event  or  from  a  succession  of  events,  we  have 
discovered  what  the  cause  must  be.  It  has  been 
much  as  tlie  astronomer  who  has  established  be- 


DISCOVERING  INTERNATIONAL  LAW  / 

fore  he  has  ocuhuly  demonstrated  the  existence  of 
a  star.  The  perturbations  of  other  stars  have 
pointed  the  way. 

While  we  have  not  been  aware  of  this,  our  ex- 
amination of  law  in  national  society  has  been 
much  the  same.  Unconsciously  we  have  worked 
back  from  results  or  events  to  law  and  then  pro- 
claimed and  enforced  it. 

The  internationalist,  having  before  him  num- 
berless ditferences  between  nations,  a  vast  amount 
of  material  from  which,  with  careful  study  he 
could  have  deduced  laws  which  had  been  violated, 
has  contented  himself  with  writing  down  the  inci- 
dents attendant  upon  the  violations.  He  has  been 
no  more  than  the  man  with  the  muckrake  looking 
down  to  the  earth,  when  above  and  around  is  the 
glorious  light  of  day, 

Assume  as  thoroughly  detached  an  attitude  of 
mind  as  may  be  possible,  and  for  at  least  a  brief 
period  lay  aside  the  prejudices  and  predilections 
to  which  you  may  have  grown  accustomed.  For 
the  purpose  of  the  discussion  be  prepared  to  in- 
dulge in  what  is  called  "idealization";  to  project 
ourselves  away  from  all  the  hampering  surround- 
ings of  the  present  into  a  future  where  reason  and 
justice  may  be  presumed  to  reign.  If  we  contend 
that  this  is  too  great  an  undertaking  and  l^eyond 
human  alulity,   then   religion  must  be  a   failure 


8  democracy's  international  law 

since  it  asks  no  less  than  this.  It  is  only  by  ideali- 
zation that  future  progress  is  made.  Before  he 
puts  his  pen  to  the  drawing  paper,  the  architect 
sees  in  his  mind's  eye  the  magnificent  structure 
the  creation  of  which  he  is  to  direct.  The  states- 
man, desirous  of  reform,  visualizes  the  end  to  be 
gained  and  the  good  which  will  be  incident  to  it 
before  the  law  is  drafted.  The  student  of  Inter- 
national Law  must  in  this  wise  gain  comprehen- 
sion of  the  ends  toward  which  he  should  move. 

What  must  be  the  aim  and  end  of  International 
Law?  Why  should  it  exist  at  all!  These  ques- 
tions may  be  asked  even  before  we  determine  its 
essentials  or  the  divisions  which  it  must  assume. 

Within  the  limits  of  the  State  the  end  of  law  is^ 
it  may  be  said,  to  preserve  order  and  insure  jus- 
tice between  man  and  men  and  between  the  State 
and  the  individual.  This  is  well  expressed  by  the 
Preamble  of  the  Constitution  of  the  United  States 
which  says:  "We,  the  people  of  the  United, 
States,  in  order  to  *  *  *  establish  justice,  insure 
domestic  tranquillity,  *  *  *  and  secure  the  bles- 
sings of  liberty  to  ourselves  and  our  po^^terlty, 
do,"  etc.  Turning  to  International  Law,  we  may 
believe  that  its  purpose  is  to  attain  as  between 
the  States  of  the  world  what  will  closely  core- 
spond  to  that  condition  sought  to  be  established 
nationally    by    the    Constitution    of    the    United 


DISCOVERING  INTERNATIONAL  LAW  9 

States.     If  International  Law  departs  from  this 
purpose,  it  violates  the  intent  of  its  existence. 

In  our  present  study  we  shall  be  assisted  in  the 
beginning  by  inquiring  as  to  what  law  is  and  some- 
what in  detail  as  to  its  divisions  and  purposes. 

It  is  a  trite  definition  of  law,  justified  by  the  ob- 
s-ervations  of  Blackstone,  though  not  completely 
true,  that  it  is  a  rule  of  action  prescribed  by  a 
superior  and  which  the  inferior  is  bound  to  obey, 
commanding  what  is  right  and  prohibiting  what  is 
wrong.  But  if  we  go  further,  sundry  distinctions 
are  to  be  made.  There  is  a  great  mass  of  what 
we  call  law  which,  in  the  profounder  sense  of  the 
term  is  not  law  at  all,  but  merely  accepted  rules 
of  convenience.  In  England  vehicles  approaching 
from  opposite  directions,  pass  each  other  to  the 
left.  In  the  United  States  they  pass  to  the  rigbt 
(This  is  not  to  be  called  in  any  deep  sense  a  rule 
of  law,  but  is  more  allied  to  what  in  the  case  of  a 
corporation,  may  be  termed  "a  by-law.")  In 
turning  over  the  pages  of  our  statute  books  we  find 
certainly  four-fifths  of  all  the  laws  vhich  are 
passed  are  rules  of  convenience.  They  do  not 
command  what  is  right  and  prohibit  what  is 
wrong.  They  lay  down  modes  of  action  for  indif- 
ferent things;  things  which,  without  interference 
vritli  human  rights,  may  be  determined  in  any  con- 
venient way.     This,  for  example  is  the  ease  with 


10  democracy's  international  law 

laws  affecting  descents,  administration  of  estates, 
execution  of  wills,  formation  of  corporations, 
forms  and  titles  and  powers  of  particular  courts 
and  multitudinous  ordinances  which  do  not  differ 
from  them,  in  essential  nature,  in  the  respect  of 
which  we  are  now  speaking. 

Then  we  have  a  large  body  of  statutes  giving  to 
us  what  is  called  adjective  law,  also  rules  of  action 
based  on  no  absolute  theory-  of  right,  although 
conducive  to  the  general  ends  of  order.  These 
determine,  by  way  of  illustration,  the  manner  in 
which  adniiinstrators  shall  be  appointed  and  qual- 
ify; the  methods  by  which  they  shall  be  held  to 
accountability;  how  and  where  suits  shall  be 
brought  and  what  shall  be  the  forms  of  pleadings ; 
how  the  judgments  of  courts  shall  be  enforced,  or 
a})peals  taken  to  higher  courts,  etc.  These  ordi- 
nances in  turn  do  not  command  what  is  right  or 
prohibit  what  is  wrong  in  any  moral  sense,  but 
further  the  general  necessities  of  society. 

There  remains  yet  to  be  considered  what  we  may 
regard  as  real  law,  dealing  with  the  absolute 
rights  of  man,  as  expressed  in  the  Declaration  of 
Independence,  to  life,  liberty,  and  the  pursuit  of 
happiness.  The  experience  of  mankind  has  sliown 
that  the  individual  maist  be  regarded  as  possessed 
oi  certain  primary  rights.  We  have  been  a  long 
time  in  discovering  them,  but  we  have  largely  sue- 


DISCOVERING  INTERNATIONAL  LAW  11 

ceeded,  and  tliey  have  been  made  manifest  by  the 
fact  that  when  they  have  been  denied,  such  denial 
has  meant  social  disorder  or  even  revolution.  This 
fact  betniys  the  existence  of  real  law  as  distin- 
guished from  ordinary  rules  of  action  and  adjec- 
tive law  of  which  we  have  spoken. 

We  must  enlarge  this  branch  of  the  discussion 
by  reference  to  crimes  against  order.  The  experi- 
ence of  mankind  has  demonstrated  that  following 
the  commission  of  certain  acts  confusion  arises  in 
society,  and  there  is  danger  of  its  growth  save  in 
some  way  it  may  be  checked.  From  this  fact  it 
has  been  determined  that  these  things  have  vio- 
lated a  social  law  originally  unexpressed.  Thus 
we  have  found  that  the  man  who  committed  mur- 
der has  himself  infringed  upon  the  orderly  con- 
duct of  society  hj  his  direct  act  and  has  created 
vendettas  and  feuds.  We  have  further  inferred 
that  the  man  who  so  far  lost  control  of  himself  as 
to  murder  once,  was  likely  if  unrestrained  to  coni- 
mit  a  similar  offense  on  another  occasion.  Con- 
sequently we  have  found  as  a  fact  that  the  com- 
mission of  murder  is  contrary  to  natural  law. 
Conversely,  if  murder  had  brought  about  no  social 
effects  of  a  disagreeable  character  we  would  have 
been  justified  in  believing  that  it  was  not  forbid- 
den by  any  natural  law  of  society  and  that  it 
should  not  be  forbidden  by  any  community  made 


12  democracy's  inteenational  law 

law.  Precisely  like  the  })liyt;ieiau  we  trace  back 
the  disease  to  the  violation  of  the  laws  of  nature, 
although  on  onr  part  the  operation  has  been  un- 
conscious. In  the  domain  of  morals  our  conception 
of  this  natural  law  is  called  conscience.  In  the  do- 
main of  legislation  we  have  sought  to  enforce  such 
law  by  the  threat  of  punishment.  The  essential 
tiling  is  that  when  men  assume  a  certain  social  re- 
lation the  infringement  of  these  laws  creates  dis- 
order which,  being  recognized,  is  denounced  by  the 
formal  law  of  the  community. 

In  the  manner  just  illustrated,  we  shall  discover 
that  all  the  other  laws  forl)idding  and  punishing 
crime  have  arisen  under  similar  conditions  except 
such  as  address  themselves  merely  to  what  con- 
cerns the  minor  interests  of  the  community,  in- 
volving no  moral  element,  and  define  mala 
prohihita. 

Having  fixed  these  distinctions,  turn  to  the  lield 
of  International  Law.  We  discover  that  ds  be- 
tween States  til  ere  have  l:)een  established  a  great 
variet.v  of  conventions.  Nations  agree  among 
themselves  on  the  fomiation  of  rules  of  naviga- 
tion, treaties  of  naturaiization,  recognition  of 
trademarks  and  of  copyrights,  extradition,  postal 
conventions,  and  an  immense  number  of  minor 
conventions  whicli  involve  no  abstract  right  as  a 
rule,  but  are  the  arrangement  of  relations  upon 
matters  usually  morally  indifferent. 


DISCOVERING  INTERNATIONAL  LAW  13 

In  each  instance  there  is  created  a  modu^ 
Vivendi  from  which  no  one  nation  has  any  suffi- 
cient reason  to  depart.  The  rule  is  universally 
observed  just  as  a  like  rule  is  followed,  within  the 
State,  and  may  lead  to  no  material  international 
differences.  Aside  from  convention,  there  also 
grows  up  what  may  be  called  the  minor  common 
law  of  nations  regulating  their  intercourse  of 
courtesy.  All  of  these  matters  are  treated  under 
the  head  of  International  Law  and  have  their  im- 
portance as  the  usages  of  polite  international  so- 
ciety.. In  any  profound  sense  they  do  not  con- 
stitute law.  They  are  simply  usages  or  customs 
sometimes  put  in  written  form  as  being  most  con- 
venient for  reference,  and  when  so  placed  least  of- 
fensive to  national  susceptibilities.  They  should 
be  clearly  disting-uished  from  fundamental  law. 

Like  the  rules  within  the  state,  we  have  a  cer- 
tain small  body  of  International  Adjective  Law. 
Its  most  important  expression  is  found  in  the 
Hague  Treaties  of  Arbitration.  It  is  further, 
however,  to  be  discovered  in  connection  with 
various  of  the  conventions  entered  into  between 
nations  as  relating  to  the  manner  of  their  enforce- 
ment. International  Tribunals  have  to  some  de- 
gree developed  such  procedural  law. 

No  reference  is  made  to  the  so-called  laws  of 
war  as  part  of  International  Law.    They  need  not 


14  democracy's  international  law 

be  treated  as  if  they  were  integral  law,  in  part  for 
reasons  already  indicated.  They  are  not  certain 
as  we  have  seen  as  to  either  time  or  place.  They 
are  not  laid  down  by  any  superior  and  find  none 
of  their  sanctions  in  the  laws  of  nature  or  in  the 
enforceable  conclusions  of  international  tribunals. 
They  are  not  observed  in  practice  except  so  far 
as  the  combatants  choose  to  recognize  them. 
Every  attempt  made  to  lay  them  down  in  an  au- 
thoritative way  has  been  as  unavailing  as  would 
be  the  dictum  of  a  physician  to  a  man  in  fever 
that  his  temperature  should  not  rise  above  a  given 
figure.  They  much  resemble  an  admonition  to  a 
man  subject  to  paroxyms  of  insanity  that  when 
he  is  so  attacked  he  must  be  sure  not  to  kill  any- 
body. 

Having  discovered  substantial  law  within  tiie 
State  by  tracing  disorders  back  to  the  law  the  vio- 
lation of  which  has  caused  the  disorder,  may  we 
adopt  the  same  process  to  discover  the  real  prin- 
ciples of  International  Law  and  by  endeavoring 
to  secure  their  observance  seek  to  remove  dis- 
orders between  nations?  This  process  has  re- 
ceived little  attention  from  students  of  Interna- 
tional Law,  and  yet  slight  consideration  will  siiow 
that  it  is  the  method  to  be  adopted  if  we  are  to  ol)- 
tain  material  results. 

Why  have  we  been  so  blind?  It  must  be  that 
when  we  look  upon  a  State  it  seems  so  large,  so 


DISCOVERING  INTERNATIONAL  LAW  15 

peculiar,  so  absolutely  in  a  class  by  itself,  that  we 
forget  that  it  is  but  a  combination  of  individuals 
and  that  pari  passu  the  problem  before  us  is  not 
far  different  from  what  it  was  when  we  deter- 
mined that  the  individual  should  enjoy  freely  and 
without  molestation,  hut  under  conditions  of 
order,  his  right  to  life,  liberty,  and  pursuit  of  hap- 
piness. We  have  ignored  the  fact  that  the  State 
is  but  the  individual  grown  large,  and  we  have 
treated  it  as  if  we  verily  believed  it  was  immune 
from  the  operation  of  the  protective  laws  of  lesser 
forms  of  human  society.  A  mere  glance  at  the 
teachings  of  history  should  have  shown  us  our 
error  and  have  convinced  us  that  there  were  un- 
derlying princi])les  as  strongly  affecting  States  as 
affecting  individuals,  even  though  never  written 
down  in  lawbooks  and  never  enforced  by  fixed 
penalties. 

Germany  took  from  France  the  major  part  of 
Alsace-Lorraine.  She  deprived  France  of  polit- 
ical control  of  the  parts  taken  and  gained  for  her- 
self, or  rather  for  some  of  her  subjects,  the  ad- 
vantages incident  to  the  control  of  certain  great 
natural  resources.  The  privileges  which  in  these 
respects  France  and  Frenchmen  had  theretofore 
enjoyed  were  lost.  The  International  Law  as 
written  in  the  books,  which  says  that  the  victori- 
ous nation  has  a  right  to  inflict  its  own  penalties 


16  democracy's  international  law 

upon  the  loser,  must  justify  the  action  of  Ger- 
many. But  there  is  a  higher  unrecognized  Law  of 
Nations,  as  there  was  a  higher  law  affecting  slav- 
ery, wliieh  says  that  the  thief  of  power  and  pos- 
session shall  be  punished.  Under  this  law,  of 
which  the  books  of  learned  authors  take  no  cog- 
nizance, Germany,  to  protect  her  misdeeds,  was. 
compelled  to  embark  upon  a  career  of  intensified 
militarism.  In  its  ultimate  results  the  economy  of 
the  world  was  deranged.  Her  forcible  theft  was 
one  of  the  great  contributing  causes  bringing 
about  the  late  war  resulting  in  Germany's  over- 
throw. 

Let  us  take  another  German  instance  illustrat- 
ing the  existence  of  fundamental  International 
Law.  Germany  invaded  Belgium  in  order  to 
strike  at  France.  In  so  doing,  she  broke  an  an- 
cient treaty.  More  than  this,  she  undertook  to 
impose  her  will  upon  a  nationality  not  under  her 
jurisdiction,  and,  upon  resistence,  enforced  it  by 
arms.  That  this  experiment  brought  about  such 
a  reaction  as  was  to  be  expected,  needs  no  argu- 
ment. Had  it  been  api)arently  sucessful  and  en- 
a])led  her  to  subdue  Prance,  we  may  believe  that 
the  consequences  would  nevertheless  have  been 
serious.  No  nation  of  the  world  would  have 
trusted  Germany.  Other  nations  would  have 
armed  to  the  teeth  against  her,  and  her  losses, 


DISCOVERING  INTERNATIONAL.  LAW  17 

though  less  immediately  obvious,  would  have  been 
no  less  certain. 

We  may  infer  from  this  the  existence  of  an  In- 
ternational Law  which  prohibits  the  invasion  for 
selfish  reasons  of  one  country  by  another,  even 
though  we  find  nothing  written  upon  the  subject. 
Nevertheless  action  and  reaction  are  equal,  and 
the  results  are  inescapable. 

Great  Britain,  in  her  manner  of  treatment  of 
her  American  Colonies  in  the  18th  Century,  im- 
posed her  will  wrongfully  in  many  different  ways. 
The  reply  to  her  action  was  the  American  Revolu- 
tion, and  she  lost  a  Continent.  Rendered  wiser  by 
experience  and  knowledge,  she  since  that  time  has 
largely  avoided  her  former  errors.  Again  we  are 
taught  real  International  Law. 

Turn  to  another  instance  where  the  story  has 
only  in  part  been  told,  and  the  developments  oi 
which  lie  largely  in  the  future.  Various  nations 
have  taken  advantage  of  the  military  helplessness 
of  China  and  have  undertaken  to  seize  for  them- 
selves ports  and  for  their  subjects  concessions. 
They  have  infringed  upon  her  national  indepen- 
dence. They  have  apportioned  to  themselves 
spheres  of  influence.  They  have  established  con- 
sortiums to  regularize  enforced  control  over  rail- 
ways and  other  profitable  undertakings.  Have 
these  repeated  violations   of  right  brought  with 


18  democracy's  international  law 

them  a  sense  of  security  or  even  financial  benefit 
to  the  nations  concerned'?  The  answer  clearly 
must  be  ''no."  The  further  the  nations  have 
penetrated  into  China  the  larger  have  grown  their 
military  and  naval  expenditures;  their  jealousies 
of  each  other;  their  fears  of  the  result  to  them- 
selves if  ever  the  Chinese  giant  wakes  up.  Even 
today  the  balance-sheet  by  any  proper  reckoning 
would  show  a  physical,  and,  as  it  undoubtedly  does, 
show  a  moral  loss.  He  who  would  read  the  future 
can  see  that  these  losses  are  manifestly  capable  of 
tremendous  expansion. 

The  several  nations  in  China  have  thus  taken 
steps  immoral  (unlawful)  in  themselves  and  in- 
volving punishment.  Can  we  not  therefore  infer 
that  the  nations  have  violated  a  natural  Interna- 
tional Law  of  Nations,  the  punishment  for  which 
violation  is  absolutely  certain  I 

One  is  reminded  of  the  story  of  a  consultation 
between  leading  Chinese  disturbed  over  the  situa- 
tion when  the  Manclius  seized  the  government  ol 
China.  When  they  were  gathered  together  one 
of  the  most  respected  of  them  was  called  upon 
for  his  opinion.  He  said  in  substance :  "We  need 
not  disturb  ourselves.  The  Manchus  will  be  swal- 
lowed up  b}^  the  great  body  of  Chinese;  their 
power  will  ebb  away  from  them,  and  in  200  years 
we  will  not  know  that  they  ever  existed  to  trouble 


DISCOVERING  INTERISTATIOXAL  LAW  19 

US."  These  were  the  words  of  a  philosopher  who 
recognized  that  time  is  not  alone  of  today,  but  be- 
longs to  the  future  as  well.  We  shall  not  have  to 
wait,  and  we  are  not  waiting  200  years  for  the 
evolution  of  events  to  bring  about  the  reward  for 
ills  inflicted  upon  China.  AYe  live  in  a  world  mov- 
ing more  rapidly.  The  essential  point  is  that  the 
punishment  fits  the  crime,  and  the  punishment 
connotes  the  crime. 

We  will  not  ignore  the  fact  that  nations  have 
been  brought  into  their  present  condition  of  rela- 
tive solidarity  through  innumerable  wars,  crimes, 
and  injustices;  but  this  fact  will  not  answer  our 
main  proposition.  Had  mankind  been  less  stupid; 
had  it  delivered  itself  over  to  thought  rather  than 
to  action;  to  reason  rather  than  to  blows,  the  ad- 
vancement might  have  been  many  times  more 
rapid  and  the  continual  setbacks  caused  by  re- 
venge for  wrong,  would  have  been  avoided.  Only 
now  we  have  an  illustration  of  this  very  point. 
Five  months  of  tactful  discussion  have  done  more 
to  insure  peace  and  real  amity  between  the  Eng- 
lish and  Irish  than  has  been  accomplished  by  five 
centuries  of  wrong  and  war. 

We  must  not  forget  that  the  essential  evils 
of  a  given  line  of  conduct  will  not  stand  out 
with  ec[ual  prominence  in  all  stages  of  hum.an  de- 
velopment.    As  the  scale  of  civilization  rises;  as 


20  democracy's  international  law 

social  development  takes  place,  it  is  fouud  that 
things  which  were  socially  wrong  when  the  units 
were  small,  rise  into  new  prominence  and  impress 
the  onlooker  as  of  old  the  error  would  not.  Mur- 
der and  robbery  are  events  of  less  significance,  we 
can  thus  understand,  in  a  rude  society  than  in  one 
of  fuller  development.  To  use  an  illustration  from 
the  economic  world,  we  may  take  the  rule  finding 
frequent  illustration  in  our  State  Constitutions  of 
100  or  more  years  ago,  requiring  all  forms  of 
property,  real  or  personal,  to  be  subjected  to  the 
same  tax  for  the  benefit  of  the  state.  In  a  condi- 
tion of  even  distribution  of  wealth  where,  roughly 
speaking,  each  citizen  possessed  relatively  the 
same  proportion  of  real  and  personal  propert}' 
and  absolutely  no  great  wealth  at  all,  the  evils  of 
this  economic  blunder  were  not  manifested,  but 
later  they  were  easily  perceived.  We  may  prop- 
erly argue  that  the  same  conditions  apply  to  na- 
tions; that  in  their  earlier  and  ruder  develop- 
ment, (and  after  all  States  in  the  modern  sense  of 
the  term  are  not  historically  old,)  the  revulsions 
caused  by  violations  of  natural  law  appropriate  to 
States  were  not  pronounced.  Of  late,  however, 
with  the  rapid  development  of  States  as  the  repre- 
sentatives of  worldwide  civilized  society,  and 
with  their  closer  association  resultant  upon  grow- 
ing facility  of  communication,  and  the  superior 


DISCOVERING  INTERNATIONAL  LAW  21 

intelligence  of  their  citizens,  the  evils  which  were 
localized  or  small  in  the  beginning  have  gained  a 
widespread  character  and  carry  with  them  friglit- 
ful  results. 

We  have  been  multiplying  experiences  of  late, 
piling  one  upon  another,  until  standing  at  tlieir 
top  we  are  enabled  to  discern  much  more  than  the 
beginnings  of  a  real  International  Law.  If  man- 
kind had  reached  a  stage  of  theoretical  perfection 
of  apprehension,  its  appreciation  of  the  laws  of  in- 
ternational society  and  of  the  certainty  of  auto- 
matic punishment  for  their  violation  would  be  suf- 
ficient. No  formal  laws  would  be  necessary.  But 
such  a  stage  has  not  been  reached.  Nations  need 
the  admonition  wliich  will  be  expressed  in  formal 
International  Law  when  it  shall  come  to  be  writ- 
ten. For  the  individual  we  find  that,  largely  be- 
cause of  his  deficiency  in  imagination,  punishment 
is  necessary,  and  also  that  prevention  has  its 
proper  field.  In  the  Law  of  Nations  we  shall  like- 
wise have  the  three  stages,  admonition,  preven- 
tion, and  punishment.  Usually  admonition  when 
once  written  into  law  will  be  sufficient.  When  it 
fails  prevention  in  various  forms  will  bring  re- 
lief, and  immediate  punishment  will  often  carry 
more  conviction  than  the  slower  process  of  natural 
law. 


22  democracy's  inteenational  law 

CHAPTER  II 

LAWS  OF  WAR 

In  cliemistry  from  time  to  time  we  find  two  vast- 
ly different  substances  which,  on  analysis,  mnst 
be  described  by  the  same  formula.  Nevertheless 
there  exists  between  them  subtle  but  substantial 
differences  defying  analysis.  Were  we  to  give  them 
the  same  name  because  of  apparent  chemical  iden- 
tity we  would  be  involved  in  endless  confusion  and 
Jed  into  impossible  situations. 

This  confusion,  avoided  by  the  chemist,  exists 
in  the  realm  of  international  matters.  We  speak 
of  international  jurisprudence  as  being  divided 
into  the  laws  of  war  and  the  laws  of  peace.  We 
are  deceived  by  the  fact  that  in  each  instance 
usage  lies  in  the  background.  We  find  many  prop- 
ositions in  both  illustrated  by  treaties,  and  in  cer- 
tain phases,  relatively  minor  as  to  war,  we  dis- 
cover that  resort  is  had  to  courts  of  restricted 
jurisdiction  which  profess  to  lay  down  rules  of 
action.  Because  of  these  apparent  unities  we  de- 
ceive ourselves  and  use  the  same  word  to  repre- 
sent ideas  entirely  in  dissonance.  We  discover 
atomic  units  whose  similarities  deceive  us  but 
by  which  in  like  cases  the  chemist  refuses  to  be  de- 
ceived, and  we  worship  names  bestowed  because  of 
apparent  likeness.     The  life  of  the  spirit  is  ig- 


LAWS  OF  WAR  23 

nored.  It  is  mucli  as  if  because  of  resemblances 
we  were  to  insist  that  the  Cardiff  giant  and  the 
Frankenstein  monster  were  men. 

Law,  writers  tell  us,  is  a  rule  of  action  laid 
down  by  a  superior  and  which  the  inferior  is 
bound  to  obey.  Sometimes  we  are  told  that  it 
commands  what  is  right  and  prohibits  what  is 
wrong.  There  are  legalists  who  transpose  this  to 
mean  that  what  it  commands  is  right  and  what  it 
prohibits  is  wrong.  At  least,  law  is  supposed  to 
be  based  on  the  morally  right  and  to  be  bounded 
by  reason.  Furthermore,  it  is  presumed  to  be  cer- 
tain— not  to  be  set  aside  or  varied  by  the  whims 
of  the  individual  without  regard  to  the  eif  ect  of  his 
action  upon  others.  Again,  it  is  capable  of  en- 
forcement. (Of  course,  we  are  dealing  broadly 
with  substantive  law  in  its  important  aspects,  and 
only  touching  in  a  small  way  upon  legal  rules  of 
convenience  or  of  procedure,  which  are  beside  the 
present  argument.)  In  a  sense,  the  vast  body  of 
law  may  be  said  to  grow  out  of  usage  and  custom ; 
but  all  customs  are  not  law.  The  custom  of  slay- 
ing and  eating  enemies  taken  in  war  may  have 
been  very  general  for  thousands  of  years,  but 
never  rose  to  the  dignity  of  law,  however  tooth- 
some, satisfying,  and  economical  the  practice  may 
have  been.  The  custom  of  the  victor  in  war  to 
take  from  the  vanquished  life,  liberty,  and  terri- 


24  democracy's  international  law 

tory,  or  to  enslave  liim  by  debt,  is  nothing  but  a 
display  of  brute  force,  and  not  law  and  not  sanc- 
tioned by  law. 

We  may  believe  that  in  their  peaceful  relations 
there  is  a  law  between  nations  capable  of  natural 
and  righteous  development.  It  is  based  upon  rea- 
son and  humanity;  it  has  a  backing  of  right;  it 
recognizes  that  intercourse  between  nations 
should  approximate  such  as  exists  between  gen- 
tlemen. When  it  is  fully  developed  in  all  its 
phases,  it  will  prohibit  one  nation  from  taking  ad- 
vantage of  another  simply  because  it  has  the 
power  to  do  so.  It  will  recognize  the  indecency 
of  a  nation  trying  to  elevate  its  nationals  at  the 
expense  of  the  wellbeing  of  the  citizens  of  other 
nations.  Its  ultimate  end  will  be  the  application 
of  as  severe  and  perfect  a  justice  between  nations 
as  our  defective  humanity  will  permit  to  exist  be- 
tween individuals.  It  will  be  the  outgrowth  of 
custom,  in  so  far  as  custom  is  based  upon  ethical 
principle,  and  will  find  expression  in  treaties,  the 
studies  of  writers  of  eminence  and  the  utterances 
of  jurists  authoritatively  placed. 

Our  national  law  concerns  itself  with  the  pro- 
motion of  justice  between  man  and  man  within  the 
State.  The  unit  of  International  Law  will  be  a 
nation  and  not  an  individual,  and  its  purposes  will 
be  to  preserve  justice  between  nations.     This,  it 


LAWS  OF  WAR  25 

will  finally  discover,  can  best  be  accomplislied  by 
following  the  liigliest  ethics  of  which  we  will  be 
able  to  conceive.  Such  will  be  the  International 
Law  of  the  future,  but  it  will  be  a  law  absolutely 
and  entirely  based  upon  justice.  It  will  under- 
stand that  ideal  peace  excludes  international 
economic  conflicts  and  is  not  limited  to  the  rude 
clash  of  physical  arms. 

With  this  ideal  of  law  we  have  confused  what  we 
wrongly  call  the  laws  of  war.  These  so-called 
laws  offer  no  moral  considerations  whatever. 
They  rest  necessarily  upon  destroying  human 
lives  in  such  manner  as  will  entail  the  greatest  ad- 
vantage and  the  least  comeback  to  the  destroyers. 
For  the  latter  reason  particularly  prisoners  are 
not  ordinarily  killed.  The  retaliation  might  be 
unduly  severe.  The  prime  duty  of  a  nation  in  the 
time  of  war  is,  we  are  told,  to  render  the  oppos- 
ing nation  helpless  and  force  it  to  bow  to  superior 
strength.  Any  act  to  this  end  is  moral  and  justifi- 
able, as  is  thought  by  the  perpetrators. 

Advancement  in  developing  the  supposed  laws 
of  war  is  curious.  We  no  longer  torture  a  captive 
and  eat  him,  food  being  more  abundant.  We  burn 
him  alive  by  flame-throwers  or  consume  his  flesh 
by  gas.  We  argue  among  ourselves  as  to  the  com- 
parative humanity  of  tearing  a  man  to  pieces  by 
shrapnel  or  suffocating  him.    We  are  shocked  by 


26  democracy's  international  law 

the  conduct  of  the  Indian  who  with  a  blow-gun 
propels  a  poisoned  arrow  toward  his  enemy,  and 
we  do  not  condemn  the  firing  of  shell  which  in  ex- 
ploding scatter  about  poisonous  and  destructive 
vapors.  We  even  make  in  Hague  Conventions  and 
otherwise  solemn  resolutions  as  to  what  methods 
shall  be  followed  and  then  do  as  we  please,  be- 
cause our  resolutions  have  no  basis  in  reason ;  do 
not  advance  the  cause  of  humanity;  are  incapable 
of  enforcement,  and  present  nothing  of  the  spirit 
of  law,  although  we  give  them  the  high-sounding 
title,  "laivs  of  ivar." 

We  have  deceived  ourselves  by  the  use  of  an  in- 
appropriate word.  Our  analysis  has  shown  super- 
ficial, and  even  structural,  resemblances  between 
the  laws  of  peace  and  the  usages  and  customs  of 
war,  and  with  a  complete  lack  of  discrimination 
the  subtler  things  of  the  spirit  have  eluded  us. 

Time  and  again  we  have  been  told  that  Interna- 
tional Law  has  been  broken  during  the  recent  war 
until  the  very  name  is  a  mockery.  This  is  true 
only  in  the  same  sense  that  the  word  as  applied  to 
the  customs  of  war  was  a  mockery  before  the 
second  of  August,  1914.  The  hollowness  of  these 
customs  as  furnishing  law,  in  any  sense  of  the 
word,  has  been  exposed  by  recent  happenings,  if 
we  do  but  consider  the  matter  with  ordinary  care. 

Heavy  tomes  have  been  written  about  violations 


LAWS  OF  WAR  27 

of  International  Law  in  the  late  war.  Cities  have 
been  bombarded  without  notice ;  hostages  exacted 
and  slain;  peaceful  merchantmen  sunk  without 
warning,  and  a  vast  category  of  events  occurred, 
forbidden  according  to  supposed  authorities  and 
against  the  resolutions  (improperly  dignified  as 
conventions)  of  Hagaie  Conferences ;  Allies  or  Cen- 
tral Powers  have  been  reproached,  though  they 
have  but  simply  followed  the  ancient  truth  that 
men  frantically  mad  have  no  conscience.  We  have 
forgotten  that  as  long  as  we  admit  the  propriety 
of  outbursts  of  war  we  cannot  place  limits  upon 
its  manifestations. 

And  yet,  to  illustrate,  real  principles  of  Inter- 
national Law  were  violated  when  Germany  in- 
vaded Belgium  to  attack  France.  It  was  as  if  two 
neighbors,  separated  by  the  land  of  a  third,  had 
gotten  into  a  quarrel,  and  one  had  torn  down  the 
intervening  fence  and  destroyed  the  property  of 
the  third  to  attack  his  enemy  in  the  rear.  Still  we 
may  not  denounce  this  act  too  severely.  Germany 
was  doing  what  she  thought  necessary  for  her 
success,  treaty  or  no  treaty.  She  was  strictly  fol- 
lowing the  teachings  of  the  great  god  Mars,  and 
doing  in  a  new  way  what  in  principle  war  for  cen- 
turies has  permitted.  As  a  combatant  she  was 
laying  dovm.  her  own  rules  of  conduct  toward  a 
neutral. 


28  democeacy's  international,  law 

The  invasion  of  Belgium  was  a  little  more  or  a 
little  less  of  an  infraction  of  the  rights  of  an  in- 
nocent nation  than  is  a  blockade.  The  latter  pro- 
hibits the  neutral  who  is  not  concerned  in  the 
qnarrel  from  trading  with  the  blockaded  ports. 
The  will  of  the  country  which  has  kept  its  head  is 
subjected  to  the  will  of  the  mad  nation.  The  es- 
sential wrong  of  the  act  of  Germany  in  entering 
Belgium  was  not  that  she  broke  her  undertaking 
to  observe  the  neuti-ality  of  Belgium,  but  that  she 
entered  Belgium  at  all,  the  entry  without  leave  be- 
ing a  violation  of  Belgium's  right  to  control  her 
own  life. 

Once  we  admit  the  rightfulness  of  war  and  the 
power  of  combatants  to  lay  down  their  own  rules 
of  action  to  control  neutrals,  we  cut  from  under  us 
any  ground  of  complaint  of  casual  invasions  of  the 
territory  of  neutrals,  such  invasions  being  merely 
a  particular  form  of  disregard  for  the  rights  of 
others.  We  should  not  complain  of  the  foTna 
of   the    act,    but    of    the    fundamental    wrongful 

conception. 

This  review  may  in  some  degree,  let  us  hope, 

serve  to  call  attention  to  the  fact  that  the  so-called 
laws  of  war  are  not  laws;  that  they  should  not  be 
so  treated,  and  that  if  we  would  be  on  the  side  of 
the  future  we  must  recognize  the  customs  of  war 
as  being  violative,  in  practically  all  of  their  forms, 
of  national  and  individual  right,  and  therefore  be- 
yond the  pale  of  legality. 


SYSTEMATIZING  WAR  29 


CHAPTER  III 

SYSTEMATIZING  WAR 

"Of  law  there  cau  be  no  less  acknowledged  than  that  her 
«eat  is  the  bosom  of  God,  her  voice  the  harmony  of  the  world; 
all  things  iu  heaven  and  earth  do  her  homage,  the  very  least  as 
feeling  her  care  and  the  greatest  as  not  exempted  from  her 
power;  both  angels  and  m:^-i  and  creatures  of  what  condition  so- 
-ever,  though  each  in  different  sort  and  manner,  yet  all  with  uni- 
form consent,  admiring  her  as  the  mother  of  their  peace  and 
joy. ' ' 

Accepting  the  spirit  of  these  lines,  written  by 
Bishop  Hooker  in  his  Ecclesiastical  Polity  sonic 
three  centuries  ago,  we  may  believe  that  when 
men  first  discussed  the  "laws  of  war"  Mars 
chuckled,  and  since  that  time  high  Olympus  has 
resounded  with  his  guffaws.  Laws  of  war,  what 
are  they?  What  are  the  laws  of  arson?  The  laws 
of  mayhem?  The  laws  of  murder?  Can  there  be 
laws  of  lawlessness?  If  so,  where  do  we  find  their 
sanction?  Who  created  them?  Who  will  enforce 
them?  Are  their  roots  found  deep  in  moral  prin- 
ciple! Are  they  the  result  of  natural  perception 
and  logical  development?  AVho  welcomed  them 
as  "the  mother  of  their  peace  and  joy?" 

When  we  accept  these  laws  we  bow  to  the  rule 
of  orderly  disorder,  moral  immorality,  justly  and 
equitably  planned  disregard  of  human  right  to 
life,  liberty,  and  the  pursuit  of  happiness. 

After  all,  these  laws  strangely  mystify  us.    We 


30  democracy's  INTERNATIOiSTAL  LAW 

find  that  they  may  be  disobeyed  without  penalty 
or  punishment.  We  discover  that  under  their  rule 
it  is  righteous  for  an  army  to  explode  mines  un- 
der the  feet  of  an  unsuspecting  man;  it  is  unright- 
eous to  use  false  flags.  It  is  proper  for  a  sub- 
marine, like  a  midnight  assassin,  to  blow  up  a  ves- 
sel of  war;  it  is  improper  that  a  peaceful  mer- 
chantman, to  escape  destruction,  should  fly  the  flag 
of  a  foreign  nation.  One  series  of  deceptive  acts 
may  be  condemned  under  the  laws  of  war,  and 
another  may  be  sustained;  and  when  we  seek  for 
a  rule  of  reason  we  find  we  are,  as  it  were,  on  a 
shoreless  sea,  without  a  rudder,  with  no  compass 
to  guide  us,  and  no  sail  to  carry  us  to  a  port  of 
safety. 

Perchance  there  may  be  some  deep  funda- 
mental error  in  our  attitude  toward  the  subject. 
It  may  be  that  somewhere  we  have  missed  our 
bearings,  for  we  are  continually  calling  for  aid 
from  the  laws  of  war  and  getting  only  Delphic 
response. 

What  is  the  error  of  which  we  are  guilty  and 
at  which  Mars  scoffs?  We  have  treated  war  as 
a  legitimate  thing,  with  regard  to  which  consis- 
tent laws  might  be  laid  down  which  would  enforce 
themselves.  Nationally,  we  have  laws  against 
mayhem,  arson,  murder.  Internationally,  we  ac- 
cept  these   things    as   just.     We   have   no   laws 


SYSTEMATIZING  WAR  31 

against  tlieni.  We  have  so-called  laws  of  tliem. 
When  we  have  met  in  Hague  Peace  Conferences, 
as  in  1907,  we  have  passed  six  times  as  many  Con- 
ventions concerning  the  warlike  relations  of 
States  as  we  have  concerning  their  iDeaceful  rela- 
tions, so  legitimate  is  war.  W^e  never  proscribe 
it,  limit  it,  pnnish  it. 

If  we  could  imagine  a  country  in  which  the  in- 
habitants expected  sooner  or  later  to  indulge  in 
marauding  against  one  another  and  seizing  each 
other's  property  for  their  several  uses,  then  we 
could  further  imagine  these  same  people  getting 
together  in  solemn  conclave,  as  our  nations  do, 
and  piously  resolving  that  as  individuals  they 
would  not  raid  one  another  save  when  they  per- 
sonally felt  that  they  had  been  insulted  by  their 
fellows,  or  save  when  their  important  vital  inter- 
ests, as  they  individually  determined  them  to  be, 
demanded  that  they  possess  themselves  of  the 
property  of  each  other,  and  then  only  under  fixed 
rules,  as,  for  instance,  that  while  they  might  kill 
the  head  of  the  family,  they  would  not  kill  chil- 
dren under  the  age  of  six;  that  they  would  not 
make  slaves  of  the  survivors,  but  only  take  away 
their  property  or  mortgage  their  labor  for  future 
years ;  that  they  would  endeavor  to  nurse  back  to 
health  those  of  their  neighbors  whom  they 
wounded  but  failed  to  kill  at  the  first  shot.    These 


32  democracy's  international  law 

laws  would  be  reasonable,  as  reasonable  as  the 
laws  of  war,  and  yet  perhaps  we  would  all  admit 
that  there  migiit  be  circumstances  of  convenience 
and  advantage,  and  perhaps  of  humanity,  or  even 
morality,  which  would  prevent  the  entry  by  indi- 
viduals into  such  contracts. 

Turning,  however,  to  the  Law^  of  Nations,  we  say 
in  Hague  Conventions  that  states  may  themselves 
judge  when  they  are  insulted,  or  when  their  vital 
interests  demand  that  they  should  be  their  own 
executioners.  Having  so  declared,  we  next  lay 
down  rules  of  action  to  apply  when  they  are  at 
war,  but  without  reserving  power  to  enforce  such 
rules.  In  themselves  the  rules  may  be  as  ex- 
cellent as  was  the  rule  of  action  governing  Robin 
Hood,  when  he  stole  from  the  rich  to  give  to  the 
poor.  England  frowned  upon  his  exercise  of  this 
principle,  but  other  nations,  and  England  as  well, 
have  never  dissented  from  the  idea  that  it  was  en- 
tirely proper  to  extend  the  blessings  of  civilization 
over  far  countries  under  cover  of  cannon  smoke, 
or  that  the  rich  and  powerful  nations  should  take 
from  the  poor  and  weak 

Our  laws  of  war  have  utterly  failed  because 
they  have  started  from  the  premise  above  indi- 
cated, that  war  was  natural,  inevitable,  even 
laudable  and  righteous,  'We  can  never  meet  the 
difficulty  until  we  approach  the  problem  from  an 


SYSTEMATIZING  WAK  33 

entirely  different  standpoint.  We  must,  as  a 
nation,  treat  war  as  abhorrent  and  to  be  stamped 
out.  We  must  never  again  send  a  representative 
to  a  Peace  Conference  to  write  the  laws  of  war. 
In  the  place  of  such  burlesque  upon  peace,  real 
declarations  of  principle  must  be  written  by 
nations  indulging  in  it.  At  least  nations  must  do 
this  and  accept  the  consequences  of  such  new  rules 
of  action  if,  indeed,  they  believe  war  to  be  an  evil 
and  a  nuisance,  though  they  think  it  may  fall  short 
of  being  a  crime. 

It  makes  a  great  difference  whether  the  laws  of 
burglary  are  framed  by  burglars,  even  by  those 
who,  recog-nizing  the  frailty  of  human  nature,  ex- 
pect that  some  time  or  other  they  mil  be  compelled 
to  resort  to  burglary,  or,  on  the  other  hand,  by  citi- 
zens who  are  not  burglars,  do  not  expect  to  in- 
dulge in  burglary,  and  do  propose  to  treat  it  as 
an  objectionable  occupation. 

To  give  slight  concrete  illustrations  of  the  idea 
we  have  in  mind,  we  may  call  attention  to  the 
fact  that  one  of  the  Hagnie  Conferences  imder- 
took  to  regulate  the  use  of  submarine  mines  in 
war.  This  recognized  the  legitimacy  of  their 
employment.  Again,  according  to  the  accepted 
practice  among  nations,  a  city  may  be  bombarded 
and  the  property  of  neutrals  destroyed,  and  such 
neutrals    are    without    recourse.      Ai^proaching 


34  DEMOCKACY 'S  INTERNATIONAL  Lu\W 

these  topics  from  a  saner  point  of  view,  we  would 
agree  that  a  nation  which,  by  planting  mines  or 
through  any  other  act  of  war,  inflicted  injury 
upon  the  property  of  the  individuals  of  a  neutral 
nation  should  be  responsible  for  the  injury  in- 
flicted. 

To  illustrate:  If,  gun  in  hand,  and  endeavor- 
ing to  kill  my  enemy,  by  mischance  I  slay  an  in- 
nocent bystander,  I  am  punished  for  the  act;  the 
fact  that  my  aim  was  bad  will  not  excuse  me. 
Even  civilly  I  may  be  compelled  to  pay  heavy 
damages  to  his  wife  and  family.  If  I  set  a  trap 
for  an  enemy,  and  by  accident  kill  a  friend,  our 
municipal  laws  hold  me  deserving  of  punishment. 
The  nation  committing  like  acts  should  receive 
corresponding  x^unishment. 

We  should  not  allow  any  nation  to  gain  ma- 
terial advantage,  or  assumed  material  advantage, 
as  the  result  of  war  with  another  nation.  If,  in  a 
dispute,  I  am  overcome  by  another  man,  he  gains 
no  right  to  hold  me  down  until  I  yield  to  him  my 
purse  or  deed  him  my  property.  Yet  we  are  told 
that  by  the  laws  of  war  similar  acts  may  occur  be- 
tween nations  and  be  fully  justified.  "We  may 
truly  say  there  are  no  such  laws  of  war — that  in 
such  things  are  lacking  all  the  elements  of  law, 
whether  measured  by  the  criterion  so  eloquently 
stated  by  Hooker  or  by  any  criterion  recognized 


SYSTEMATIZING  WAR  35 

among'  men  who  claim  a  speaking  acquaintance 
with  the  Ten  Commandments  or  with  the  proprie- 
ties recognized  as  existing  among  gentlemen.  If  a 
thousand  times  men  have  been  overcome  by  their 
enemies  and  despoiled  of  their  pocket-books,  there 
is  not  thereby  created  a  law  of  robbery.  A  thou- 
sand like  instances  as  between  nations  cannot  cre- 
ate a  law  of  war  sanctioning  such  conduct.  The 
fact  that  under  given  circumstances  men  or  nations 
have  taken  advantage  of  one  another  does  not 
create  a  law  of  wrongdoing,  but  only  indicates  a 
tendency  on  their  part,  their  passions  being  ex- 
cited, to  ignore  the  laws  of  decency. 

AVe  will  further  add  to  our  national  laws.  With- 
in our  borders  we  will  prohibit  the  flotation  of 
bonds  to  carry  on  war,  just  as  we  punish  a  man 
as  accessory  to  a  crime  who  loans  money  to  an- 
other to  buy  a  gun  to  kill  his  fellow.  Likewise 
we  will  prohibit  the  selling  of  arms  and  ammuni- 
tion by  our  citizens  to  another  nation  to  carry  on 
war,  for  in  so  doing  we  make  ourselves  accesso- 
ries to  the  ensuing  slaughter.  We  must  have  our 
own  rules  of  righteousness  and  right  living. 

AVe  will  make  it  more  difficult  for  ourselves  to 
enter  into  war.  Today  our  Congress  and  our 
President  may  declare  war  without  real  knowl- 
edge of  popular  sentiment,  influenced  by  the  ex- 
citement of  the  moment,  and  we  are  compelled  to 


36  democracy's  international  k\w 

follow  in  tlieir  train.  We  will  prevent  declara- 
tions of  war  before  in  some  manner  the  question 
has  been  submitted  to  the  cool  judgment  of  the 
people,  and  if  this  be  done  we  may  be  assured 
that  we  will  never  enter  into  them.  War  has  ever 
been  a  game  for  kings  to  play  at,  and  Presidents 
and  Congresses  should  not  succeed  to  their  role. 

But  if  our  thesis  be  wrong — if  we  must  con- 
tinue to  have  laws  of  war  instead  of  laws  against 
war — let  us  address  ourselves  to  the  problem  in 
a  si^ortsmanlike  way,  and  let  war  be  a  game,  sanc- 
tioned as  such,  and  carried  out  under  enforceable 
rules.  Let  us  be  systematic,  forming  a  circle 
around  the  combatants,  and  allowing  no  nation  to 
trade  with  them  while  the  game  proceeds.  Let  the 
prize  be  determined  in  advance  of  the  conflict,  so 
that  each  nation  may  know  exactly  the  penalty  of 
defeat  or  the  reward  of  victory.  Let  strict  rules 
be  established,  with  an  umpire  furnished  with 
power  to  call  the  game  off,  enforce  forfeitures,  or 
adjudge  victory  to  the  side  winning  the  most  points 
or  indulging  in  the  fewest  fouls.  The  burning  of  a 
town  should  have  a  fixed  value;  the  killing  of  a 
thousand  soldiers,  the  slaughter  of  civilians  and 
the  bombardment  of  unfortified  ports,  the  sinking 
of  an  enemy's  ship — vessel  of  war  or  merchantman 
— should  be  rewarded,  and  a  proper  number  of 
points   allowed.    So  many  points   should   be   de- 


SYSTEMATIZING  WAR  37 

ducted  for  the  destruction  of  the  vessel  of  a  neu- 
tral nation  or  the  killing  of  neutrals.  Of  course 
official  tally-keepers  should  be  appointed. 

In  this  or  some  similar  way  it  will  be  possible 
to  systematize  war  as  we  do  a  baseball  contest  or 
a  game  of  parlor  bridge,  and  thereby  add  to  its 
sanctity  and  glory. 


270688 


38  democracy's  internatiokal  law 


CHAPTER  IV 

internationaIj  sovereignty 

In  our  studies  of  war  we  very  largely  neglect 
consideration  of  the  bases  of  what  is  called  Inter- 
national Law.  If  we  give  attention  to  the  subject 
of  murder  we  take  into  account  its  morality  and 
motives,  the  manner  and  circumstances  of  its  ex- 
ecution, moral  and  physical  sanctions  or  punish- 
ments, and  from  them  all  we  build  up  the  theory 
which  on  its  practical  side  should  be  embodied 
into  permanent  law.  Not  so  have  we  approached 
the  great  problem  of  world  trouble,  and  yet  such 
like  method  of  treatment  would  give  n  rich  re- 
ward. 

A  few  preliminary  observations  may  be  made 
before  we  consider  what  is  meant  by  the  term 
Sovereignty,  the  subject  of  our  present  examina- 
tion. International  Law  books  are  filled  with 
doctrines  founded  upon  instances  which,  when 
matched  against  each  other,  are  said  to  create  law. 
This  is  done  without  relation  to  or  consider;ition 
of  underlying  principle.  This,  if  studied,  might 
lead  to  widely  different  results.  No  endeavor  is 
made  to  discover  what  real  law  is  by  going  back- 
ward from  event  to  logical  cause.  There  are  few 
Newtons  among  the  students.  A  fallen  apple  at 
most  is  simply  an  apple  fallen,  and  it  is  put  in  the 


SOVEREIGNTY  39 

barrel  with  its  fellows,  whether  green,  ripe,  or 
rotten.  All  deductive  reasoning,  however  valid, 
is  rejected.  Such  synthetic  reasoning  as  is  in- 
dulged in  rests  upon  the  naked  earth  and  is  built 
up  without  the  mortar  of  sj'mpathy,  ethics,  or  any 
real  theory.  Facts  are  rough  hewn  and  laid  one 
upon  another  without,  to  follow  the  metaphor,  be- 
ing coursed  or  bonded.  The  laws  of  war  we  dis- 
cover to  be  merely  usages  modified  from  age  to 
age  according  to  the  kind  of  severe  or  moderate 
cruelty  popular  at  the  moment. 

The  remarks  so  far  indulged  in,  as  we  may  be 
confident,  will  be  justified  in  part  at  least  by  the 
special  consideration  to  be  given  to  the  meaning 
and  application  of  the  word  ''sovereignty."  AVith 
this  word  practically  all  writers  of  International 
Law  books  introduce  their  volumes,  and  never  do 
they  give  it  and  its  applications  practical 
analysis. 

''Sovereign  power,"  says  Grotius,  "is  one 
whose  acts  are  independent  of  any  other  superior 
power,  so  that  they  may  not  be  annulled  by  any 
other  human  will." 

Says  Oppenheim:  "Sovereignty  is  supreme  au- 
thority ;  an  authoritv  which  is  independent  of  any 
other  earthly  power.  Sovereignty,  in  the  strict 
and  narrowest  term,  includes,  therefore,  indepen- 


40  democracy's  international  law 

dence  of  all  round,  within,  and  without  the  bor- 
ders of  a  country." 

Wliat  causes  sovereignty?  Who  created  it? 
By  what  authority  does  it  deny  existence,  actual 
or  potential,  to  any  superior  outside  power? 
These  questions  are  not  answered.  The  definition 
is  an  assumption.  As  well  might  the  bully  among 
school  boys  say,  ''I  am  sovereign.  I  am  not  ac- 
countable to  my  fellows.  I  shall  treat  them  as  I 
see  fit.  I  shall  control  my  own  actions  without 
limits  and  without  restraint.  I  shall  undertake 
to  supervise  the  conduct  of  any  other  person  if  I 
so  choose."  This  declaration  might  work  very 
well  for  him  until  he  met  a  stronger  bully  or  until 
two  or  more  of  the  weaker  boys  combined  to 
thrash  him.  Under  these  circumstances  he  would 
find  his  sovereignty  infringed  upon,  suspended 
or  destroyed.  If  these  eventualities  may  happen, 
he  does  not  possess  sovereignty.  It  is  merely  a 
figment  of  the  imagination  which  may  not  prevail 
against  stern  realities. 

These  are  exactly  the  conditions  we  observe  be- 
tween nations.  The  nation  afflicted  with  a  prepos- 
session of  its  own  sovereignty,  carries  on,  accord- 
ing to  Grotius  or  according  to  Oppenheim,  until, 
like  the  school  boy,  it  meets  with  a  superior  bully 
or  a  stronger  combination,  and  then,  for  the  time 
being  at  least,  sovereignty  bows  its  head.     Sov- 


SOVEREIGNTY  41 

ereigiity  tlierefore  is  not  au  absolute  quality  of 
nations  and  the  definition  fails,  never  having  had 
any  firm  foundation. 

All  that  International  Law  offers  is  an  anar- 
chistic conception  of  sovereignt}^  as  its  basis.  The 
individual  who  owes  no  deference  to  law  or  to  his 
fellows,  or  at  least  acknowledges  none,  is  at  best 
an  anarchist  or  at  worst  a  king. 

TVe  are  not  compelled  to  acknowledge  the  cor- 
rectness of  the  theory  of  an  original  social  con- 
tract to  be  convinced  that  men  living  in  civilized 
society  must,  for  their  o\^ti  good  and  to  meet  the 
necessities  of  that  society,  submit  to  laws  de- 
signed for  mutual  protection.  Strange  to  say, 
when  the  international  lawyer  envisages  a  State, 
he  forgets  that  a  State  is  but  the  individual 
grown  large,  and  that  right  and  wrong  have  no 
relation  to  size  or  numbers.  There  must  be 
and  there  is  a  reason  for  this.  Accepted  Interna- 
tional Law  from  its  beginnings  has  been,  for  the 
most  part,  the  outgivings  of  diplomats.  These 
gentlemen  hav^e  been  reared  in  the  atmosphere 
of  courts  wherein  they  were  taught  that  their 
masters,  the  kings,  could  do  no  wrong.  They,  in- 
augurating the  Law  of  Nations,  have  felt 

"the  force  of  temporal  power, 
The  attribute  to  awe  and  majesty, 
Whei-ein  doth  sit  the  dread  and  fear  of  kings." 


42 


There  was  no  step  between  tlie  king,  the  J^ord's 
anointed,  and  Deity  itself.  By  a  natural  se- 
quence this  idea  was  applied  to  the  State. 

Few  real  lawyers,  trained  in  the  admeasure- 
ment of  human  rights  in  contests  developing  the 
fundamentals  of  Imman  liberty,  have  examined 
the  sources  of  bookish  International  Law  and 
tested  its  conclusions.  The  professors  calling 
themselves  internationalists  have  accepted  the 
teachings  of  the  diplomatic  world.  Thus  it  has 
been  that  the  definitions  of  sovereignty  we  have 
quoted  have  met  acquiescence.  It  has  been  for- 
gotten that  sovereignty  may  only  be  postulated 
upon  the  superior  power  of  the  State  over  its  in- 
ferior components.  Even  then  limitations  control 
itj  but  these  we  need  not  outline.  They  have  been 
sufficiently  discussed  by  Sir  Henry  Maine  in  Early 
History  of  Institutions. 

Let  us  consider.  As  between  the  collective  will 
of  the  State  and  the  will  of  the  individual,  that  of 
the  State  must  be  supreme,  else  the  State  perishes 
and  civilization  may  fall.  Exaggerated  dread  of 
such  failure  accounts  for  the  severity  of  laws 
against  anarchists,  often  going  so  far  that  they 
would  even  stifle  freedom  of  speech. 

A  State  is  formed  by  licit  or  illicit  means.  It 
comes  into  a  world  peopled  by  other  States,  each 
one  claiming  sovereignty  as  against  its  fellows. 


SO^'EREIGNTY  43 

Each  is  influenced  by  the  prepossession  that 
it  can  do  no  wrong  and  as  sovereign  is  bound  to 
its  fellows  by  no  ties  of  moralitj^  justice,  or  law. 
It  is  serenely  unmoral.  From  the  absolute  logic 
of  this  position  it  is  compelled  to  recede  some- 
what, as  would  a  group  of  anarchists  on  a  narrow 
island.  It  establishes  treaties,  which  it  breaks 
whenever  it  is  pleased  to  do  so,  for  a  bastard  In- 
ternational Law  has  declared  its  sovereign  right 
to  do  wrong  as  it  will.  This  anarchistic  concept 
controls  it.  That  disorder  forbidden  to  the 
individual  it  indulges  in  on  its  own  behalf  when  in 
the  society  of  those  whom  after  all  Interna- 
tional Law  is  often  required  to  call  equals.  And 
International  Law  ignores  the  fact  that  among 
equals  none  is  sovereign,  and  that  such  a  thing- 
can  only  exist  by  the  common  creation  of  all 
the  equals.  If  a  State  makes  a  treaty  it  acts 
merely  as  sovereign  over  its  inferiors.  It  re- 
mains not  more  than  an  equal  among  equals  who 
should  be  able  to  hold  it  to  accountabilit)\  It  is, 
therefore,  not  true  as  Oppenheim  imi^lies  that  a 
State  can  be  sovereign  beyond  the  borders  of  its 
country.  Attempting  it,  international  anarchy 
results,  one  of  the  worst  illustrations  of  this  an- 
archy being  the  recent  world  war. 

E«al  sovereignty  ceases  at  the  country's  limits. 
The  right  of  the  householder  to  impress  his  will 


44  democracy's  international  law 

upon  another  without  his  coiisent  ends  when  he 
passes  out  over  his  threshold.  Kings,  flattered 
by  their  courtiers,  have  denied  this.  Diplomats, 
their  servants,  have  echoed  the  denial.  Interna- 
tionalists have  weakly  followed  in  their  train. 
Confused  by  a  name,  appropriate  enough  for  lim- 
ited home  use,  given  a  wrongful  extension  beyond 
the  home  of  the  nation,  men  have  perished  by 
millions  in  foreign  wars. 

It  is  not  inapt  to  compare  the  game  played  by 
nations  in  their  intercourse  with  each  other  to 
that  of  rival  school  boy  baseball  teams.  With  re- 
gard to  his  own  affairs  strictly,  each  boy  ordina- 
rily has  a  right  to  control  his  actions.  When  he 
enters  the  baseball  nine,  he  becomes  subject  to 
fixed  and  certain  rules,  and  if  he  continually  vio- 
late them,  his  fellows  or  certainly  the  umpire  will 
expel  him  from  the  game,  expulsion  being  an  ap- 
propriate punishment.  By  his  entry  into  the 
team  he  has  circumscribed  his  liberty  in  certain 
respects.  He  has  made  himself  subject  to  law 
and  to  the  execution  of  law. 

The  action  of  the  nation  entering  into  the 
family  of  nations  should  not  be  different.  Im- 
perative rules  are  yet  to  be  made  for  this  world 
game.  A  disinterested  umpire  must  see  to  the 
infliction  of  no  less  a  penalty  in  serious  cases  than 
that  of  temporary  or  permanent  exclusion  from 


SO\^EEIGNTY  45 

the  society  of  nations.  His  jurisdiction  must  also 
be  preventive.  All  this  does  not  involve,  as  will 
result  from  what  has  already  been  said,  the  sur- 
render of  domestic  sovereignty,  the  only  kind  log- 
ically permissible.  It  simply  involves  the  recog- 
nition of  that  equality  among  the  nations  before 
the  law  which  we  say  exists  among  the  people, 
and,  as  pointed  out,  sovereignty  and  equality  are 
incompatible  terms  within  the  same  sphere  of 
action. 

The  nation  which  is  more  than  a  hermit  as  was 
Japan  prior  to  Commodorer  Perry's  visit  in 
1853,  is,  whether  it  will  or  not,  subject  to  the  dom- 
ination of  law,  if  not  of  expressed  laws,  in  its  re- 
lations with  its  fellows.  To  its  actions  there  are 
appropriate  reactions  carrying  with  them  their 
meed  of  reward  or  punishment,  even  though  writ- 
ten or  unwritten  formal  International  Law  be 
silent.  These  are  as  inescapable  as  the  law  of 
gravity.  This  would  not  be  so  were  nations  in 
truth  sovereign  in  their  foreign  relations. 

We  enter  into  postal,  copyright,  white  slave, 
navigation,  and  a  score  of  other  conventions  reg- 
ulating our  interests  with  equal  nations.  We  ob- 
serve them  with  scarcely  a  deviation.  These  are 
the  laws  of  equals,  no  one  claiming  extraterrito- 
rial sovereignty  when  they  are  entered  into.  The 
national  government  in  making  them  is  simply 
the  agent  of  the  whole  bodv  of  citizenship. 


46  DEIMOCRACY 'S  INTERNATIONAL  LAW 

But  certain  classes  of  conventions  we  look  upon 
askance.  When  we  are  asked  to  enter  into  trea- 
ties wliicli  would  restrict  our  pride,  our  ambi- 
tions, our  dishonesty,  our  covetousness,  vv>2  dis- 
cover that  the  nation  is  a  sovereign  and  can  brook 
no  superior.  We  are  blind  to  the  fact  that  such 
proposed  treaties  would  do  no  more  than  check 
wrongdoing  or  regularize  its  punishment.  "We 
think  that  by  refusing  to  form  them  we  escape  pun- 
ishment, forgetting  that  w^rongful  action  nationally 
brings  in  its  train  jealousies,  enmities,  distrust, 
loss  of  trade  and — war.  Our  devotion  to  a  word 
blinds  us  to  realities. 


MEANING  OF  '' NATIONAL  INTERESTS"  47 

("HAPTER  V 

THE  MEANING  OF  "NATIONAL  INTERESTS "* 

In  oiir  study  of  International  Law  as  nnder- 
stood  and  practiced  today  it  becomes  interesting 
to  learn  exactly  what  so-called  ''national  inter- 
ests" mean,  and  wliy  and  liow  they  may  be  used 
to  bring  about  difficulties  between  nations.  A 
thorough  diagnosis  of  the  situation  and  its  fear- 
less treatment  would  go  far  toward  inaugurating 
correction  of  present  conditions. 

The  European  viewpoint  was  stated  by  Von 
Jagow,  the  former  German  Secretary  of  State  for 
Foreign  Affairs,  in  his  comment  upon  the  Lich- 
now^sk^^  Memoirs,  published  toward  the  end  of  the 
war.  He  said  "Even  Prince  Lichnowsky  does 
not  deny  that  we  had  there  (in  the  Orient)  great 
economic  interests  to  represent:  but  today  eco- 
nomic interests  are  no  longer  to  be  separated 
from  political  interests." 

This  represents  the  old,  and,  as  we  might  have 
hoped,  the  dying  conception.  Its  suggestion  is, 
first,  get  hold  of  a  country  through  its  economic 
interests,  and  next,  control  its  political  interests 
for  the  benefit  of  the  economic.  This  has  been  the 
order  of  the  day  largely  in  the  past  —  changed 


From  the  Advocate  of  Peace,  December,  1921. 


48  democracy's  international  law 

only  by  reversing  the  sequence  and  seizing  political 
control  with  the  intent  of  using  such  control  to  de- 
velop economic  profits. 

Nevertheless,  we  find  Sir  Edward  Grey  and 
Prince  Lichnowsky  proceeding  on  behalf  of  their 
respective  governments  to  divide  up  parts  of  the 
world  as  the  larger  interests  of  individuals  of  their 
respective  countries  might  dictate,  with  the  su- 
preme thought  in  their  minds  that  if  a  suitable 
division  of  economic  control  of  the  countries  in 
question  should  be  made,  the  chance  of  armed 
strife  could  proportionately  be  eliminated.  This 
very  position  was  in  itself  a  confession  that  the 
great  danger  of  war  between  the  two  nations  was 
in  the  desire  of  governments  to  seek  for  groups 
of  capitalists  new  fields  of  exploitation. 

We  learn  with  interest  that  "all  the  economic 
questions  connected  with  the  German  enterprise 
were  regulated  in  substantial  accord  with  the  de- 
sires of  the  German  Bank,"  It  is  hard  to  con- 
ceive in  this  day,  w^hen  the  rights  of  the  common 
people  are  assumed  to  be  paramount,  that  in  de- 
termining a  question  of  possible  war  or  peace 
a  settlement  should  be  controlled  by  the  wishes  of 
a  bank. 

Further,  we  find  from  the  same  Memoirs  that 
the  Germans  were  to  be  admitted  by  the  treaty  ar- 
ranged between   Sir  Edward   Grey   and   Prince 


MEANING  OF   "national  INTERESTS"  49 

Lichnowsky  but  never  actually  ratified,  "to  par- 
ticipation in  Basra  Harbor  Works,"  and  that 
they  were  given  rights  in  the  Tigris  which  had 
formerly  been  a  monopoly  of  the  firm  of  Lynch. 
The  Prince  finds  that  under  this  treaty  Mesopo- 
tamia, as  far  as  Basra,  was  to  be  a  German  sphere 
of  interest  without  prejudice  to  certain  older 
British  private  rights,  while  British  were  to  con- 
trol the  coasts  of  the  Persian  Gulf  and  Smyrna- 
Aidin  line,  the  French,  Syria,  and  the  Russians, 
Armenia. 

It  is  said  often  that  European  nations  have,  or 
have  had,  spheres  of  influence  in  China,  Africa, 
and  elsewhere,  and  that  within  these  spheres  of 
influence  their  national  interests  were  entitled  to 
full  play  at  the  expense  of  other  nations.  Japan, 
we  are  informed,  has  special  interests  in  China 
(the  Lansing'-Ishii  notes  erroneously  declared 
them  to  exist)  and  Spain  and  France  are  now 
claiming  them  in  Morocco. 

Can  a  nation,  in  point  of  fact,  have  any  interest 
in  a  country  over  which  it  does  not  possess  per- 
fect and  complete  sovereignty  f  We  must  deny 
it.  The  purpose  for  which  g-overnment  is  formed 
is  not  to  have,  as  a  government,  interests  in  other 
countries.  It  is  formed  for  the  preservation  of 
order  and  the  regulation  of  internal  affairs 
within  its  owti  circumscribed  limits  and  for  pro- 


50  democracy's  IjSTTEENATIONAL  i^w 

tection  against  invasion.  It  does  not  control  the 
railroads,  banks,  ore  beds,  or  commerce  of 
another  country,  and  ordinarily  its  scope  of  op- 
erations in  these  respects  is  very  limited,  even 
within  its  own  proper  territorial  bounds.  It  may 
happen  that  a  large  number  of  persons  of  Japa- 
nese, English,  or  other  origin  may  own  and 
manage  railroads,  mining  property,  and  banks, 
and  carry  on  commerce  in  China  or  elsewhere ;  but 
the  things  which  they  own  are  private,  or  so 
treated,  and  individually  possessed  by  them  be- 
cause of  the  good  grace  of  the  country  in  which 
they  happen  to  operate.  Their  possession  be- 
comes a  source  of  profit  to  the  owner,  the  only 
governmental  interest  of  whose  country  is 
through  the  small  measure  in  w^hich  such  owners 
become  contributors  to  its  taxes. 

The  so-called  British  or  Japanese  interests  in 
China  rest  in  the  keeping  of  a  few  hundred  or 
a  few  thousand  individuals.  The  great  mass  of 
millions  of  other  subjects  derive  no  profit  or  ben- 
efit therefrom.  It  may  not,  therefore,  be  said  in 
any  true  sense  of  the  term,  that  there  are  British 
interests  or  Japanese  interests  in  China  or  Amer- 
ican interests  in  Mexico.  To  speak  of  the  interest 
of  an  American  citizen  as  if  it  were  the  same  as 
an  American  interest,  or  in  other  words,  an  in- 
terest of  America,  has  but  the  shadow  of  truth 


MEAXING  OF   "national  INTERESTS"  51 

and  none  of  its  substance.  We  shall  not  be  free 
from  the  danger  of  war  until  this  fact  is  thor- 
oughly understood.  We  should  not  allow  our- 
selves to  be  deceived.  We  must  not  treat  the 
hand  of  Esau  and  the  voice  of  Jacob  as  if  they 
belonged  properly  together. 

There  is  but  one  interest  which  may  by  any  pos- 
sibility be  called  governmental  (in  truth  it  is  not 
a  governmental,  but  a  world  interest),  and  that 
is  that,  commercially,  all  foreigTiers  within  a 
country  should  be  treated  upon  a  basis  of  equality 
and  not  of  preference.  This  was  all  that  was  in- 
volved in  the  so-called  open-door  policy  of  the 
late  Secretary  Hay.  To  go  to  war,  however,  to 
establish  an  open-door  policy  would  simply  mean 
the  infliction  of  misery  upon  thousands  for  the 
benefit  of  the  handful  who  would  be  the  principal 
gainers  therefrom.  The  evil  would  always  be  cer- 
tain; the  good  problematical  and  doubtful,  and  at 
best  out  of  all  proportion  compared  with  the  ab- 
solute disaster. 

But  if  we  are  right,  and  we  do  not  tliink  the 
positions  so  far  taken  can  be  successfully  con- 
troverted, why  is  it  that  pseudo-national  inter- 
ests are  so  often  at  the  bottom  of  ill-feeling  be- 
tween countries  and,  as  in  the  latest  world  trag- 
edy, the  underlying  cause  of  active  war?  The 
short  answer  some  might  find  by  recalling  the  re- 


52  demockacy's  international  law 

mark  of  Carlyle  one  hundred  years  ago  that 
England  was  inhabited  by  20  millions  of  people, 
mostly  fools.  The  people  of  all  countries  are  de- 
luded by  a  word.  A  few  of  their  number  desire 
special  advantages  in  designated  countries,  and, 
forgetting  their  poverty  and  real  non-interest,  the 
majority  believe  that  they  may  share  in  the  profit 
which  goes  only  to  the  few. 

We  have  heard,  as  who  has  not,  the  campaign 
orator  describing  to  a  credulous  audience  the  tre- 
mendous advance  in  popular  prosperity  which 
had  occurred  under  the  then  control  of  his  party. 
Billions  have  been  spoken  of  as  if  the  speaker  and 
his  hearers  really  understood  and  comprehended 
the  word  in  its  full  sense.  Millions  seemed  to  be 
dancing  in  the  air  as  the  audience  subjected  it- 
self to  the  hypnotic  influence  of  the  orator.  Tlie 
illusion  of  great  wealth  took  possession  of  the 
hearers.  And  yet,  when  the  voice  of  the  orator 
was  stilled,  the  band  had  ceased  to  play,  and  the 
lights  were  turned  out,  the  poor  listeners  went  to 
their  homes  to  struggle  with  the  same  poverty 
they  had  always  ex)ierienced.  The  billions  wei'e 
somewhere,  but  not  with  them. 

In  like  manner  nations  are  befooled  by  the  lim- 
ited number  who  hope  to  gain  through  the  pos- 
session of  foreign  wealth.  Insistently  the  people 
are  told,  and  in  a  state  of  hypnosis  they  believe, 


MEANIXG  OF   "NATIONAL  INTERESTS"  53 

that  in  some  mysterious  manner  the  dancing  ignis 
fatuus  of  foreign  fortune  is  to  be  converted  to 
their  individual  use.  Thus  it  was  that  the  French 
common  people  were  persuaded  to  give  up  their 
lives  and  fortunes  to  conquer  Madagascar  and 
Toiiquin,  and  the  Italian  peasantry  taught  that 
they  were  to  grow  great  and  wealthy  through  the 
control  of  Tripoli  by  their  government.  Even  in 
our  own  country,  when  the  taking  of  the  Philip- 
pine Islands  was  under  consideration,  anxious  of- 
ficial inquiry  was  made  as  to  their  potentiality  of 
wealth,  to  the  end  of  satisfying  the  American 
l^eople  when  about  to  enter  upon  an  experiment 
which  many  of  them  regarded  as  doubtful. 

Perhaps,  after  all,  the  error  of  the  many  is  only 
a  survival,  as  the  eocajx  and  the  vermiform  ap- 
pendix are  supposed  to  be.  When  a  tribe  moved 
of  old  from  an  inclement  or  worn-out  land  and 
seized  a  mild  and  fertile  country,  killing  the  old 
inhabitants,  each  warrior  taking  up  some  of  the 
unoccupied  lands,  the  individual  was  the  gainer 
from  warfare.  It  was  in  some  such  fashion  as 
this  that  we  disposed  of  the  Indian.  But  now  the 
vast  body  of  the  so-called  civilized  nations  lose  by 
war.  The  advantage  to  all  the  victors  which  once 
came  from  the  impartial  slaughter  of  the  losers 
and  possession  of  their  lands  has  in  this  day  dis- 
appeared.    All     the     advantages     they    possibly 


54  democracy's  international  law 

could  obtain  from  war  (and  none  of  it8  losses) 
are  to  be  had  by  breaking  down  the  artificial  man- 
made  barriers  that  separate  countries.  The  sole 
advantage  to  the  generality  of  any  successful  na- 
tion which  may  come  from  war  is,  otherwise  stated, 
an  enlarged  Zollverein. 

Thus,  looked  at,  and  in  sober  common  sense 
other  views  must  be  rejected,  war  becontos 
usually  an  utterly  sordid  operation,  and  the  people 
who  f].ght  in  it  simply  the  cat's-paws  of  those  who 
are  colder-blooded  and  less  idealistic  than  the  ma- 
jority. We  say  this  even  though  we  admit  that  the 
interested  parties  have  deceived  themselves  as  to 
national  interests  before  th.ej  started  to  deceive 
others. 

After  all,  ideals  are  created  and  played  upon, 
else  men  would  not  so  readily  impoverish  their 
future  or  surrender  their  lives  to  enrich  others. 
The  people  are  persuaded  to  be  for  their  coun- 
try, right  or  wrong.  Unconsciously  they  wor- 
ship a  fetish.  In  the  older  time  the  king,  so  the 
people  were  told,  could  do  no  wrong.  Id  this 
more  modern  day,  when  we  are  for  our  country 
under  any  and  all  circumstances,  forgetting  that, 
if  wrong,  real  patriotism  compels  us  to  put  it 
right,  we  are  making  a  fetish  but  little  changed 
from  the  ancient  form.  We  now  declare  that  the 
people  may  not  err.    In  point  of  fact  it  is  possible 


MEANING  OF   "NATIONAL  INTERESTS"  55 

the  people  may  do  wrong  themselves.  The  chance 
of  evil  conduct  is  infinitely  multiplied  because  of 
the  docility  with  which  they  accept  the  teachings 
of  those  who  are  influenced — consciously  or  other- 
wise— in  these  matters  by  purely  selfish  motives. 
The  people  believe  they  are  themselves  acting, 
when  in  fact  they  are  being  played  upon.  Their 
ambition,  their  avarice,  their  chauvinistic  patriot- 
ism, their  pride  of  supremacy,  are  the  keys.  They 
have  no  more  to  do  with,  the  tune  that  is  played 
than  has  the  piano. 

To  all  this,  democratic  government  is  no 
answer.  A  republic,  in  but  little  less  degree 
than  a  monarchy,  can  be  moved  by  artificial  pas- 
sion. The  answer  must  come  in  a  more  thorough 
m^astery  of  the  meaning  and  practice  of  honesty 
internationally,  which  will  ever  penetrate  behind 
conduct  to  motive. 

The  more  profound  student  of  economies  may 
reproach  us  for  not  pointing  out  and  demonstrat- 
ing that  "economic"  interests  usually  mean  con- 
trol of  the  land  on  which  all  people  must  work; 
that  such  control  gives  power  over  the  worker, 
forcing  him  to  labor  for  the  benefit  of  the  holder 
of  land  titles;  that  therefore  exploitation  of 
foreign  countries — if  not  of  foreign  nations — 
means  little  else  than  the  establishment  in  them 
of  that  system  of  land  monoply  which  prevails 


56  demockacy's  inteknational  law 

among  so-called  civilized  nations.  In  other  words 
to  him  exploitation  largely  means  an  extension  of 
that  unrestricted  land  ownership  which  at  home 
spells  so  much  poverty  and  degradation  and  so 
greatly  weakens  democratic  forms  of  government. 

If  we  grant  all  this,  however,  it  simply  shows 
that  at  an  important  point  national  predilections 
influence  international  conduct,  and  that  we 
should  be  the  more  zealous  and  philosophic  stu- 
dents of  national  law. 

To  follow  this  thought  would  be  beside  our  im- 
mediate purpose  which  is  to  deal  with  more  strict- 
ly present  international  phases,  leaving  national 
law  to  purify  itself  and  thereafter  to  purify  the 
Law  of  Nations.  For  the  moment  we  would  make 
the  basis  of  International  Law  at  least  as  good  as 
that  of  national  law. 


today's  international  law  superficial      57 
CHAPTER  VI 

SUPERFICIALITY   OF    TODAY 's   INTERNATIONAL   LAW  * 

Perhaps  there  is  some  branch  of  legal  knowledge 
which  has  received  less  analysis  than  has  Inter- 
national Law,  but  it  does  not  at  the  moment  appear 
what  that  branch  may  be.  The  books,  to  all  intents 
and  purposes,  fail  to  uncover  the  differences  be- 
tween ordinary  usages  and  conventional  agree- 
ments, adjective  law  and  the  basic  laws  by  which, 
consciously  or  unconsciously,  masses  of  mankind 
embodied  into  States  are  controlled — laws  which 
when  violated  bring  inevitable  punishment.  Little 
attention  is  given  to  the  penal  and  natural  sanc- 
tions which  follow  the  breaking  of  true  or  funda- 
mental International  Law.  The  State  is  treated  as 
if  it  were  a  non-moral  institution,  not  subject  to 
the  workings  of  any  law  higher  than  itself.  Such 
a  non-moral  thing  as  a  rock  is  constructed  accord- 
ing to  and  controlled  by  the  operations  of  a  great 
variety  of  natural  laws.  Writers  have  been 
strangely  blind  to  the  fact  that  a  State  is  but  an 
aggregation  of  human  units,  just  as  the  rock  is  an 
aggregation  of  molecules,  and  that  it  is  not  free 
from  the  laws  surrounding  individual  and  col- 
lective human  existence.    Wrongs  which  mav  be 


From  The  Advocate  of  Peace,  January,  1922. 


58  democracy's  international  law 

iiitiicted  by  and  upon  individuals  are  not  changed 
into  rights  because  the  State  is  brought  into  action. 

The  student  is  perplexed  and  appalled  by  the 
apparent  complexity  of  International  Law — a  com- 
plexity which  exists  largely,  however,  only  in  the 
minds  of  its  professors  and  not  in  the  subject 
itself.  He  is  furnished  with  no  clew  to  assist 
him  out  of  the  artificial  labyrinth.  He  is  told 
that  the  sources  of  International  Law  are  to  be 
found  in  the  writings  of  eminent  authors,  in  the 
practices  of  nations,  and  in  conventional  agree- 
ments betw^een  nations,  such  as  are  ordinarily  em- 
bodied in  treaties.  He  is  not  warned  that  much 
of  such  so-called  law  is  but  the  crystallization  of 
wrongdoing  on  the  part  of  nations.  It  is  largely 
left  to  him  to  discover,  unaided,  that  he  has  been 
given  mere  enumerations  of  facts,  and  not  the  re- 
sults of  diligent  study  as  to  the  nature  of  law  itself. 
He  is  taught  that  there  can  be  such  a  thing  as  the 
laws  of  war  despite  the  fact  that  the  usages  of  war 
contain  none  of  the  attributes  of  law. 

The  student,  relying  upon  the  instructions  of  a 
jDrofessor  who  has  not  been  trained  to  use  his  own 
mind,  will  be  encouraged  to  believe  that  a  State  is 
a  creature  outside  and  beyond  law,  sovereign  in 
itself,  and  that,  like  the  king,  it  can  do  no  wrong. 
He  must  himself  discover  that  this  conception  of 
a  State  is  medieval,   feudal  and   aristocratic — 


today's  international  law  superficial      59 

certainly  not  democratic.  At  the  same  time  that 
he  is  assured  States  are  sovereign  in  their  foreign 
relations,  he  is  told  that  equality  exists  between 
them — two  ideas  utterly  irreconcilable.  The  sov- 
ereigTi  knows  no  higher  law.  Equals  may  not, 
without  violating  equality,  seek  forcibly  to  impose 
their  wills  upon  each  other.  If  they  do,  then  they 
violate  law — real  International  Law. 

Thus  the  student  has  little  reason  to  believe  that 
there  is  such  a  thing  as  basic  International  Law — 
law  which  may  not  be  disobeyed  except  at  the  cost 
of  damage  to  the  State  itself  and  to  humanity  at 
large.  It  is  not  given  him  to  learn  that  there  may 
be  a  comparative  jurisprudence  paralleling  Inter- 
national Law.  The  only  exception  to  this  is  the 
casual  suggestion  that  the  United  States  is  a  Union 
of  States  resembling  in  their  interrelations  nations 
at  large,  and  from  whose  Constitution  suggestive 
infonnation  may  be  dra^\ai.  But,  if  the  subject 
is  pursued,  even  here  emphasis  is  laid  almost 
exclusively  upon  the  Union's  system  of  fed- 
eral courts.  The  real  source  of  the  strength  of  the 
Union — the  freedom  of  intercourse  and  trafiSc  be- 
tween the  States — receives  scant  notice,  and  the 
unlawfulness  (in  nature)  of  interference  with  com- 
merce between  nations  is  ignored.  The  penalties 
for  the  breaking  of  this  law  in  international  rela- 
tions remains  unperceived. 


60  democracy's  international  law 

It  is  due  to  our  lack  of  imagination  that  no  basis 
is  found  for  comparative  jurisprudence  between 
tlie  law  controlling  States  as  organized  bodies  of 
men  and  the  law  controlling  individuals.  We  en- 
tirely forget  that,  in  the  slow  i)i*ocesses  of  the 
ages,  we  have  worked  out  a  basis  of  human  right 
"svhich  may  not  be  ignored  when  we  consider  the 
State  at  large.  But  mankind  has  discovered,  as  to 
the  individual,  that  he  may  not  murder  or  steal; 
that  such  acts  are  antisocial,  and  therefore  pro- 
hibited by  natural  law  and  to  be  punished,  directly 
and  corporeally,  by  civil  law.  It  has  further  been 
discovered  that  the  indi\ddual  possesses  natural 
rights — rights  that  we  know  are  natural,  because 
their  infringement  brings,  sooner  or  later,  punish- 
ment upon  the  infringer,  whether  a  person  or  a 
State.  Nevertheless,  no  comparative'  jurispru- 
dence has  yet  taught  International  Law  writers 
that  theft  of  possessions  and  murder  of  their  own- 
ers committed  by  a  State,  a  multitude  of  individ- 
uals, is  as  antisocial  an  act  as  a  like  offense  com- 
mitited  by  a  single  individual. 

Apparently  no  International  J^aw  writer  will 
recognize  these  and  other  relevant  facts  and  ap- 
preciate the  lessons  to  be  drawn  from  them  until 
the  data  of  International  Law — real  International 
Law — have  been  collected  and  arranged  and  their 
bearings  understood.     So  far  this  work  has  not 


today's  international  law  superficial      61 

been  done  either  systematically  or  intelligently. 
We  do  not  speak  a  true  langTiage  of  International 
Law,  but  a  jumble  of  sounds  which  we  have  not 
resolved  into  their  component  elements. 

International  lawyers  as  yet  are  \vithout  a  clear 
test  which  they  can  apply  to  the  facts  of  a  new 
situation  and  determine  from  its  probable  results, 
as  shown  by  experience,  what  may  be  the  righteous 
course  to  pursue.  If  with  their  faulty  vocab- 
ulary and  store  of  misunderstood  facts  they  can 
find  no  analogy,  they  are  lost  in  approaching  the 
problem.  They  do  not  know  whether  to  test  it  by 
the  gallon,  bushel,  wind  gage,  pressure  gage, 
weather-cock,  Ten  Commandments,  or  by  the  prin- 
ciples of  Machiavelli.  They  are  worse  off  than  a 
case  lawyer  confronting  strange  conditions. 

The  votaries  of  the  International  Law  of  today 
write  grave  books  for  the  edification  of  the  student 
about  the  events  of  any  war  which  may  have  passed 
over  the  world,  and  their  manner  of  so  doing  will 
serve  to  illustrate  how  counsel  is  darkened.  The 
political  facts  leading  up  to  the  war  receive  the 
fullest,  though  often  unenlightened,  treatment. 
The  interests  controlling  political  action  are 
lightly  passed  over  or  igTiored.  The  more  remote 
origins  of  the  dispute  are  not  traced  out.  The 
immediate  events,  which  are  results  and  not  begin- 
nings,   are    treated    as    the    groundwork    of   the 


62  democracy's  international  law 

trouble  culminating  in  war.  Nothing  of  a  funda- 
mental character  is  developed,  informing  the 
reader  or  students  as  to  the  rights  originally  vio- 
lated or  the  rights  proposed  to  be  violated  by  the 
institution  of  war ;  for,  througliout,  the  non-moral 
conception  of  the  State  influences  or  stifles 
thought. 

The  learned  authors  gravely  consider  whether 
the  outbreak  was  preceded  by  a  declaration  of 
hostilities,  or  whether  the  killings  commenced 
without  warning,  and  which  would  have  been  the 
proper  course.  They  discuss  the  development  of 
contraband  which  the  war  has  brought  about, 
ignoring  the  fact  that  this  is  equivalent  to  a  dis- 
cussion as  to  whether,  a  man's  coat  being  taken, 
his  vest  should  likewise  go  to  the  thief,  and,  if  so, 
whether  the  watch  should  accompany  the  vest. 
The  occasion  arising,  nmch  time  is  spent  over  the 
law  of  blockade,  and  it  is  discovered  w^hether  it 
has  been  changed  or  modified  by  the  events  of  the 
war.  The  fact  is  overlooked  that  the  alleged  law 
of  blockade  permits  interference  with  the  right  of 
the  neutral  to  trade  with  one  of  the  combatants, 
and,  justifying  violations  of  natural  right,  cannot 
be  classed  as  a  sound  law. 

The  rights  of  neutrals  are  constantly  described 
by  them  as  increased  or  lessened  through  the  ac- 
tions of  the  combatants.     No  ciuestion  as  to  the 


today's  international  law  superficial      63 

right  of  a  combatant  to  subordinate  the  interests 
of  a  peaceful  nation  to  his  wishes  seems  to  arise. 

The  writers  discuss  the  use  of  dum-dum  or  ex- 
plosive bullets,  gas,  and  other  methods  of  human 
extinction,  and  seek  to  discover  which  is  the  most 
in  accordance  with  Christian  usage  and,  let  us  as- 
sume, the  Sermon  on  the  Mount.  They  examine 
the  facts  as  to  the  le\^  of  contributions  upon  the 
civil  populations  by  the  several  armies,  but  any 
doubt  as  to  the  entire  honesty  of  this  practice  is 
never  expressed. 

As  to  what  they  regard  as  rules  controlling  the 
use  of  balloons,  airplanes,  bombs,  and  submarine 
mines,  they  call  the  changed  practice  a  develop- 
ment of  law. 

In  doing  these  several  things  they  do  not  cite 
the  conclusions  of  any  tribunal  in  which  the  life 
or  wellbeing  of  man  is  regarded  as  of  any  moment, 
or  quote  from  any  legal  decisions  at  all,  except  it 
be  the  dicta  of  the  prize  courts  of  the  parties  in 
conflict. 

They  think  that  they  are  developing  law  when 
they  are  merely  setting  down  a  narrative  of  facts 
concerning  violations  of  the  rights  of  untram- 
meled  human  existence,  violations  which  are  the 
negation  of  \a^y.  The  reservation  might  be  made 
that  these  facts  do  have  the  subtle  relation  to  the 


64  '  democracy's  internatioxal  law 

written  or  unwritten  law  wliicli  tiie  acts  of  a  crim- 
inal have  to  that  moral  code  he  has  violated.  As 
furnishing  data  for  real  International  Law,  they 
are  exactly  comparable  mth  the  criminal  history 
of  Jack  Sheppard  or  with  accounts  of  the  exploits 
of  others  who  have  perished  on  Tyburn  Hill. 

The  books  being-  published,  the  reviewers  pro- 
nounce them  to  be  "notable  contributions  to  the 
science  of  International  Law" — a  commendation 
to  which  no  criticism  may  be  offered  except  that 
the  volumes  are  not  scientific  and  that  they  have 
no  relation  to  real  law. 

It  is  not  just  to  say  that  the  writers  of  these 
tomes  have  performed  utterly  useless  labor.  There 
is  probably  sufficient  reason  for  the  classification 
and  recordation  of  even  the  most  unsavory  events. 
But  let  us  take  this  work  for  what  it  is,  and  not 
associate  it  in  any  way,  save  as  a  warning,  w^itli 
what  really  is  International  Law.  The  true  duty 
of  the  collector  of  the  data  of  International  Law, 
upon  whose  work  the  jurist  must  predicate  his  ex- 
positions of  law,  is  not  far  different  from  that  of 
the  actor,  whose  place  it  is  to  hold, ' '  as  'twere,  the 
mirror  up  to  Nature;  to  show  Virtue  her  own 
feature,  Scorn  her  own  image,  and  the  very  age 
and  body  of  the  time  his  form  and  pressure. ' ' 

Bearing  in  mind  and  applying  the  Shakspearean 
suggestion,  take  this  concrete  example:    In  1912 


today's  IXTEENATIOXAX,  law  SUPERFICIAli         65 

a  war  broke  out  between  Italy  and  Tripoli. 
Italian  troops  invaded  Tripoli  and  finally  con- 
quered the  country.  "VMiat  should  be  the  attitude 
of  the  student  of  international  events  toward  this 
war,  and  what  would  he  find  to  examine  and  dis- 
cuss ?  He  would  consider  the  causes  of  the  war,  in- 
quiring" particularly  whether  or  not  Italian  states- 
men believed  Tripoli  to  be  a  land  of  potential 
wealth.  He  would  examine,  and  perhaps  discover, 
what  important  Italian  business  interests  desired 
profit  in  Tripoli  in  the  way  of  control  of  natural 
resources,  extension  of  banking  institutions,  con- 
cessions for  railways  and  like  means  of  com- 
merce, and  what  other  business  and  mercantile 
institutions  regarded  it  as  a  fruitful  field  for  their 
endeavors.  He  would  inquire  curiously  as  to 
whether  or  not  there  was  an  interlocking  political 
and  business  directorate  controlling  Italian  poli- 
tics; whether  or  not  the  interrelation  was  repre- 
sented hj  the  same  people  or  by  those  intimately 
allied  with  them,  or  whether  or  not  there  existed 
financial  obligations  on  the  part  of  the  politicians 
toward  the  business  men.  He  would  discover 
whether  or  not  there  was  a  jealousy  between  those 
whom  we  courteously  call  Italian  statesmen  to- 
ward other  countries  because  of  the  processes  of 
subjugation  in  North  Africa  which  had  been  car- 
ried on  by  England,  France,  and  Spain.    It  would 


66  democracy's  international  law 

be  a  matter  of  moment  to  him  whether  or  not,  as 
against  these  nations,  Ital}^  was  claiming  her  share 
of  the  loot  in  a  field  the  conquest  of  which  was  re- 
garded as  relatively  easy,  and  whether  or  not  this 
conquest  was  claimed  by  Italians  and  regarded  by 
politicians  in  other  nations  as  Italy's  compensa- 
tion for  her  good  nature  while  those  countries 
were  gaining  control  of  resources  in  a  land  com- 
paratively near  to  Italy.  He  would  investigate  as 
to  whether  or  not  an  artificial  desire  among  the 
people  for  the  occupancy  of  Tripoli  had  been  cul- 
tivated through  artful  repetitions  of  the  fact  that 
over  two  thousand  years  before  ancient  Rome 
had  subdued  it.  His  interest  would  be  excited  if 
he  found  that  the  idea  had  been  disseminated 
among  the  Italian  peasantry  that  Tripoli  was  a 
land  of  large  mineral  and  agricultural  resources, 
from  the  possession  of  which  workers  in  the  fields 
and  mines  of  the  Peninsula  might  hope  to  gain. 
He  would  want  to  know  if  minor  elements  had 
been  appealed  to  for  the  purpose  of  influencing 
public  sentiment  in  Italy,  as,  for  instance,  if  the 
contempt  which  people  of  one  religion  are  ready 
to  bestow  upon  people  of  another  religion  had  been 
systematically  stirred  up,  and  if  an  analogous 
racial  contempt  so  easily  brought  to  the  surface 
had  been  excited,  these  not  as  direct  causes  of  the 
war,  but  as  stimuli  to  bring  men  to  the  point  of 


today's  international  law  supeeficial      67 

slaughter.     Catchy  but  elusive  watchwords,  cre- 
ated for  the  occasion,  would  not  be  overlooked. 

Turning  to  the  results  of  the  war,  the  writer 
would  strive  to  estimate  the  value  of  the  "im- 
ponderables," as  they  are  termed,  such  as  the 
hatred  and  contempt  which  the  war  would  attach 
to  the  name  of  Italy  in  the  minds  of  Moslems,  and 
to  give  full  weight  to  the  thoughts  of  enmity  and 
revenge  created  among  a  subject  people,  thoughts 
destined  sooner  or  later  to  find  their  outlet.  He 
would  measure  the  direct  monetary  loss  to  Italy 
and  the  burdens  placed  upon  Italian  subjects  for 
which  they  could  never  hope  to  have  a  return.  He 
would  try  to  gage  the  damage  done  by  the  with- 
drawal of  men  from  industrial  pursuits  to  the 
ways  of  destruction,  this  as  affecting  the  direct 
physical  loss  and  the  necessary  moral  degenera- 
tion. He  would  not  fail  to  examine  into  the  effect 
of  the  war  upon  the  commercial  and  political  rela- 
tions of  Italy  with  other  nations. 

In  estimating,  on  the  other  side,  the  benefits,  if 
he  could  find  any,  he  would  inquire  whether  or  not 
the  war  had,  after  all,  given  an  enlarged  field  of 
labor  for  the  toiling  millions  of  Italy,  and  whether 
or  not  its  financial  benefits  had  inured  to  an  ex- 
ceedingly small  circle  of  Italian  financiers,  while 
the  whole  burden  fell  upon  the  shoulders  of  those 
who  were  already  sufficiently  oppressed. 


68  democracy's  international  law 

This  examination  might  well  be  multiplied  as 
many  times  as  wars  have  been  indulged  in  for  the 
past  fifty  years.  Thus  would  be  furnished  a 
tremendous  amount  of  data  available  to  all  peo- 
ples disposed  to  enter  upon  armed  conflict.  It  is 
entirely  safe  to  say  that  with  this  data  gathered 
together  new  proof  would  be  afforded  that  aggres- 
sive war  cannot  be  carried  on,  and  even  what 
Grotius  called  "a  just  war"  cannot  be  indulged  in, 
without  bringing  terrible  punishment  upon  the 
nations  concerned.  After  all,  we  shall  add  but  lit- 
tle to  the  wisdom  of  the  poet  who  wrote : 

When  thou  hearest  the  fool  rejoicing,  and  he  saith,  "It  is  over 

and  past, 
And  the  wrong  was  better  than  right,  and  hate  turns  into  love  at 

the  last, 
And  we  strove  for  nothing  at  all,  and  the  Gods  are  fallen  asleep; 
For  so  good  is  the  world  a  growing  that  the  evil  good  shall  reap;  " 
Then  loosen  thy  sword  in  the  scabbard  and  settle  the  helm  on 

thine  head, 
For  men  betrayed  are  mighty,  and  great  are  the  wrongfully  dead. 

And  thus  it  is  that  war  breeds  war,  and  we  be- 
come involved  in  a  vicious  circle,  recognized  as 
legitimate  by  the  International  Law  writers,  but  in 
which  justice  as  between  man  and  man,  between 
nation  and  nation,  plays  no  part. 


IMPEKIALISTIC  ADVENTUEE  69 


CHAPTER  VII 

IMPERIALISTIC  ADVENTURE  UNDER 
INTERNATIONAL  LAW 

We  have  pointed  out  that  the  State  is  merely  a 
multiplication  of  individuals.  As  such  it  is  or 
should  be,  allowing  only  for  such  different  situa- 
tion as  a  partnership  presents  when  contrasted 
with  that  of  a  single  individual,  controlled  by  the 
same  fundamental  laws,  subject  to  the  same  re- 
wards and  punishments  as  a  mere  human  being, 
and  endowed  with  the  same  ambitions,  desires  and 
passions.  Nevertheless,  in  the  discovery  and  ap- 
plication of  the  law  as  applied  to  the  single  individ- 
ual and  to  the  group  called  a  State,  greatly  differ- 
ent degrees  of  progress  have  been  made.  In  the 
course  of  the  centuries  it  can  be  truthfully  said 
that  inquiry  into  rights,  duties  and  penalties  for 
wrongdoing  so  far  as  the  individual  is  concerned 
have  advanced  infinitely  more  than  have  inquiries 
as  to  the  same  matters  Avith  regard  to  States. 

For  an  indefinite  number  of  thousands  of  years 
mankind  has  bloodily  fought  its  way  until  it  has 
reached  a  point  where  many  fundamental  legal 
rights  have  been  made  manifest  to  the  stupidest 
so-called  lawgiver  because  of  the  punishment  fol- 
lowing upon  their  denial.    We  have  learned  that 


70  democeacy's  international  lav/ 

ail  have  a  right  to  life  as  between  themselves, 
though  we  have  not  advanced  this  knowledge  to 
embrace  the  individual  in  his  relations  with  the 
State.  ATe  know  that  a  man  is  entitled  to  liberty, 
that  is  to  say  to  go  to  and  fro  as  he  pleases;  to 
employ  himself  or  to  be  employed  in  any  gainful 
way;  to  enjoy  such  amusements  as  he  will.  Inci- 
dentally we  have  proclaimed  in  our  Constitutions 
for  his  l)enent  and  for  the  benefit  of  all  that  he 
may  publish  by  print  or  word  of  mouth  his  ideas 
on  any  point  whatsoever.  The  written  law  has 
recognized  his  right  to  acquire  property,  but  has 
•declared  that  he  may  not  do  so  through  violence  or 
Iby  fraudulent  de\ace  condemned  by  law. 

We  have  made  these  and  other  advances,  but  it 
remains  true,  and  we  must  bear  in  mind  the  fact, 
that  even  these  lessons  have  been  imperfectly 
learned  or  are  imperfectly  comprehended  in  all 
their  implications.  To  a  degree  the  exact  truth  of 
any  conclusion  we  may  have  reached  is  vitiated  be- 
cause of  this  fact.  Merely  by  w^ay  of  suggestion,  as 
the  full  arg-ument  is  quite  aside  from  our  purposes, 
it  may  be  said  that  while  we  enjoy  freedom  of 
speech  usually  at  any  rate  as  to  religion,  we  may 
not  indulge  in  it  in  an  unrestricted  manner  as  to 
the  conduct  of  the  government  under  Avhich  we 
live.  Particularly  is  this  true  in  war  times  when 
the  government,  while  willing  that  people  should 


IMPEEIALISTIC  ADVENTUEE  71 

be  critical  as  to  the  ideas  underlying  other  institu- 
tions than  itself,  fiercely  proclaims  its  actions  as 
outside  of  the  range  of  ordinary  discussion.  So 
also  while  we  rightfully  recognize  the  existence 
of  property,  the  word  itself  has  not  received  its 
final  definition,  and  the  nature  of  property  is  at 
all  times  subject  to  re-examination.  This  we  will 
remember  was  decidedly  the  case  as  late  as  the 
war  between  the  States,  and  we  will  not  forget  that 
an  infinite  amount  of  property  was  destroyed  with- 
out compensation  (that  is,  not  regarded  as 
property)  when  the  prohibition  amendment  was 
adopted.  Again  our  attitude  toward  honesty  is 
largely  conventional.  If  the  written  law  tells  us 
that  a  certain  line  of  conduct  in  a  given  case  is 
dishonest  the  law  is  usually  right,  and  we  accept  it. 
With  equal  submission  we  regard  that  as  honest  to 
which  the  law  gives  its  stamp  of  approval  or  at 
least  which  it  does  not  formally  reprobate.  This 
saves  the  labor  of  thought.  Nevertheless,  accurate 
conceptions  as  to  private  honesty  do  multiply  with 
the  rapid  increase  of  personal  relationships. 

However  imperfect  may  be  our  appreciation 
of  right  and  wrong  as  affecting  indi\dduals, 
and  whatever  changes  the  future  may  have  for  us, 
this  branch  of  law  is  better  understood  than  is 
International  Law,  which  has  many  valuable  les- 
sons to  learn  from  it.    For  this  situation  there  are 


72  democracy's  international  law 

excellent  reasons.  As  stated,  knowledge  of  law 
on  the  personal  side  has  been  developing  for  thous- 
ands of  years.  When  we  treat,  however,  of  growth 
in  knowledge  of  law  in  its  international  phases, 
we  must  remember  that  its  history  is  a  short  one. 
During  the  time  of  Roman  supremacy  after  the 
rude  contests  of  earlier  years,  all  outside  the 
Roman  pale  w^ere  barbarians,  not  forming  real 
nations.  Until  the  Middle  Ages  a  foreigner  was 
almost  invariably  regarded  as  an  enemy.  These 
considerations,  without  undertaking  to  develop 
them,  forbade  increase  in  knowledge  of  any  true 
International  Law  among  the  Romans. 

During  the  early  Middle  Ages  the  nations  for 
the  first  time  began  to  recognize  themselves  as 
entities  between  whom  some  sort  of  relation  must 
exist.  But  it  was  then  the  courtier,  the  immediate 
servant  of  the  king,  who  was  the  agent  through 
whom  these  relations  were  carried  on,  and  who 
led  the  professors,  controlled  by  feudal  teach- 
ings, to  lay  down  with  unconscious  sarcasm  what 
they  called  the  Law  of  Nations.  Our  later  develop- 
ments, as  has  been  pointed  out,  show  the  defects 
of  the  origin  of  this  branch  of  what  now  is  only 
pseudo  science,  defects  which  are  obvious  enough 
to  all  except  those  who  are  too  close  to  it  to  see. 
International  perceptions  are  perhaps  slower  in 
part  because  such  relations  are  of  necessity  fewer 


IMPERIALISTIC  ADVENTURE  73 

and  do  not  command  the  vigorous  examination 
that  acute  and  immediate  personal  interests  dic- 
tate in  private  affairs. 

If  we  have  through  fire  and  blood  wrought  out 
a  theory  of  human  rights  as  affecting  the  individ- 
ual which,  while  defective,  offers  nevertheless  the 
best  working  basis  we  have,  why  should  we  not 
apply  a  like  theory  directly  to  the  State?  If  we 
take  this  course,  forgetting  the  prepossessions 
which  affect  us  because  of  conditions  as  they  are, 
we  shall  be  forced  to  conclude  that  that  which  is 
dishonest  in  the  man  is  dishonest  in  the  State ;  that 
which  is  cruel  in  the  individual  is  cruel  in  the 
State;  that  which  is  contemptible  in  the  one  is 
equally  contemptible  in  the  other.  No  bias  of 
patriotism  should  blind  us  as  to  the  essential 
nature  of  national  acts  and  no  blindness  induced 
by  custom  should  prevent  our  seeing  the  obvious. 

A  conclusion  from  all  this  is  that  there  is  a  duty 
imposed  upon  those  who  would  influence  in  the 
lines  of  justice  the  affairs  of  nations, — and  this 
includes  every  individual  in  our  land, — to  demand 
that  Uncle  Sam  should  be,  according  to  the  best 
theoretical  and  practical  standards,  a  gentleman 
and  an  honest  man.  And  after  all  true  Inter- 
national Law  has  no  requirement  other  or  greater 
than  this.  It  has  no  mystery  about  it.  It  calls  for 
nothing  except  clear  and  clean  thinking. 


7'i  democracy's  ixterxatioxal  law 

There  is  a  copybook  saying  to  which  we  give 
formal  assent  that  "honesty  is  the  best  policy.'' 
If  this  be  true  wn.t\i  regard  to  individuals,  slight 
examination  will  show  that  it  is  true  as  to  nations. 
The  trouble  has  been  that  governments,  proud  in 
their  own  conceit,  limiting  criticism  from  within, 
impatient  of  it  from  without,  con\dnced  of  the 
righteousness  of  their  actions,  and  lacking  the 
cool,  steady  control  of  ideas  of  justice  worked  out 
and  laid  down  within  the  books  of  International 
Law,  have  run  riot  over  the  rights  of  their 
neighbors. 

Let  us  apply  the  rule  we  have  just  suggested. 
If,  to  illustrate,  that  dictate  of  honesty  which 
prohibits  a  man  from  forcibly  seizing  the  goods 
of  his  neighbor  had  prevailed  as  betAveen  nations, 
would  the  victor  after  success  at  arms  in- 
flict upon  the  loser  the  loss  of  territorial  power, 
with  delivery  over  of  moneys  obtained  from  the 
subjects  of  the  losing  country,  or  hold  the  defeated 
nation  in  bondage  of  debt  ninning  over  indefinite 
years?  If,  for  instance.  International  Law  had 
been  '^on  the  job"  would  it  have  failed  to  recognize 
that  a  government  is  a  mere  agency  acting  for 
others ;  that  the  fines  and  penalties  levied  upon  a 
government  were,  in  point  of  fact,  not  levied  upon 
the  government  at  all  but  upon  each  individual 
whose  purposes  it  w^as  created  to  serve?    AVould 


IMPERIALISTIC  ADVENTLTIE  iD 

not  International  Law  have  seen  that  the  success- 
ful contestant  was  taking  money  from  human  be- 
ings represented  by  the  unsuccessful  government  f 
Would  it  have  been  able  to  square  this  conduct  with 
the  most  ordinary  principles  of  honesty!  Would 
it  not  have  perceived  that  the  infliction  of  a  penalty 
upon  the  loser  government  was  pro  tanto  reducing 
its  subjects  to  a  condition  of  slavery?  For  all  that 
slavery  does  is  to  take  without  recompense  the  un- 
willing labor  of  one  man  for  the  benefit  of  another. 

In  the  presence  of  this  situation,  the  law  writer 
calmly  says  that  such  is  the  fortune  of  war  and 
such  is  the  right  of  the  victor.  By  what  right  is 
this  said!  By  no  right  except  it  be  that  superior 
power  is  recognized  as  right.  But  power  and  right 
do  not  spell  the  same  thing.  If  it  be  said  that  a 
State,  by  the  mere  fact  of  its  existence,  can  convert 
that  which  was  wrong  in  the  individual  into  some- 
thing coimnendable  on  its  part,  we  may  ask  at  what 
point  the  subtle  alchemy  which  reverses  the  charac- 
acter  of  acts  begins  to  operate.  The  private  in- 
di\ddual  has,  we  shall  agree,  no  right  to  kill  or 
steal.  This  act  is  antisocial  and  under  the  ban, 
therefore,  of  a  natural  law,  even  when  men  are 
living  outside  the  jurisdiction  of  formal  statutes. 
We  will  agree  further  that  no  two  individuals  pos- 
sess that  right.  We  will  perhaps  agree  that  when 
a  group   of  men   is   united  into   a  village   com- 


76  demockacy's  international  law 

munity,  tliey  are  but  fortuitous  collections  of 
human  beings  who  are  not  endowed  with  the  mys- 
terious power  of  transforming  original  wrong  into 
right.  They  may  not  therefore  rob  and  slay  mem- 
bers of  a  neighboring  village.  We  will  hesitate  to 
declare,  and  we  will  not  tolerate  among  ourselves, 
that  a  city  can  rightfully,  because  of  its  jealousy 
of  a  neighbor,  destroy  its  inhabitants ;  but  we  sud- 
denly discover  that  when  several  cities  unite  and 
call  themselves  a  nation  the  restraints  M^hich  had 
controlled  the  individual  or  the  little  group  or  the 
village  or  city  no  longer  exist.  An  enlargement 
of  the  members  and  a  change  of  name,  it  would 
appear,  have  a  certain  moral  efficacy,  rather 
elusive  it  must  be  confessed,  but  very  satisfying  to 
our  desires  for  gain  and  power,  so  that  wo  never 
examine  to  discover  if  there  be  any  weakness  in 
our  chain  of  argument.  As  practical  men  we  ac- 
cept things  as  they  are,  and  with  the  folly  so  often 
incident  to  practical  statesmanship  we  ignore  the 
necessary  sequences  of  our  actions. 

If  we  turn  to  the  results  of  our  line  of  conduct, 
particularly  as  exemplified  in  the  most  modern 
examples,  we  find  that  it  brings  its  own  peculiar 
punishment,  and  thus  its  wrongful  character  is 
demonstrated.  We  shall  show  that  this  is 
especially  true  today.  Under  the  old  feudal  con- 
ception the  subject  was  merely  the  chattel  of  the 


IMPERIALISTIC  ADVEXTURE  77 

lord  and  not  an  integral  part  of  the  State.  The 
Prince  hj  his  voluntary  action  could  transfer  his 
subjects  from  his  control  to  that  of  other  poten- 
tates without  exciting  thought  or  resentment  on 
the  part  of  people  who  were  thus  treated  as  cat- 
tle. Of  old,  therefore,  the  penalties  might  have 
been  slight  and  practically  non-existent.  Feudal- 
ism might  have  permitted  this  line  of  conduct 
with  little  demur.  Today  a  democratic  Law  of 
Nations  is  coining  into  play. 

Let  us  take  a  recent  example  from  the  history  of 
our  own  country.  In  1898  Spain,  bowing  to 
superior  force,  yielded  her  corrupt  sovereignty 
over  the  Philippine  Islands  to  the  United  States. 
As  it  is  argued,  w^e  quieted  our  consciences  by 
paying  Spain  $20,000,000.  Spain  was  herself  an 
interloper  and  a  foreign  power  in  the  Philippines, 
even  though  she  had  exercised  control  there  for 
three  centuries,  the  Spanish  people  the  while  be- 
ing punished  during  every  year  of  those  three 
hundred  in  that  they  were  compelled  to  send 
armies  to  those  islands  and  to  expend  relatively 
enormous  sums  on  navies  to  insure  their  subjection 
and  retention. 

As  a  result  of  the  conduct  pursued  by  us,  5,000 
American  lives  were  lost  in  the  Philippines,  and 
year  by  year  our  naval  expenses  as  well  as  our 
army  budgets  have  been  enormously  increased  by 


78  DEMOCEACy's  INTEKNATIONAL  L4.W 

an  attempt  like  that  of  Spain  to  subdue  and 
preserve  our  forcible  acquisitions.  Our  exploits 
in  the  Philippines,  including  the  strangling  of  a 
budding  republic,  have  thus  vastly  increased  the 
steady  burden  of  taxation  in  the  United  States, 
and  every  worker,  however  modest  his  income,  and 
every  man  of  wealth  whatever  his  possessions 
may  be,  finds  himself  compelled  yearly  to  part 
w^ith  appreciable  sums  of  money  for  having  main- 
tained what  some  call  the  tawdry  glory  of  our 
imperialistic  venture. 

The  evil  we  are  told  does  not  stop  at  this  point. 
We  have  set  an  imperialistic  example  to  Japan. 
Further,  if  we  have  been  troubled  because  of  tense- 
ness of  relations  with  that  dynastic  country,  many 
say  it  is  almost  wholly  because  we  have  interjected 
ourselves  into  the  affairs  of  islands  inhabited  by 
an  alien  people  close  to  Japan  and  many  thousand 
miles  away  from  us,  making  our  imperialism  a 
present  danger  to  Japan.  Our  punishment  ap- 
pears to  have  been  direct  and  certain. 

Some  among  us  also  arg-ue  that  we  are  salving 
our  consciences  with  the  thought  that  we  have 
treated  the  Filipinos  better  than  some  other  ex- 
ploiter nation  may  have  treated  the  peoples  of 
Asia  or  Africa  which  have  come  under  its  power. 
We  have,  it  is  true,  taught  Filipinos  sanitation. 
We  have  given  them  education.    We  have  incul- 


IMPERIALISTIC  ADVENTURE  79 

cated  ideas  among  tliem  that  they  did  not  before 
possess  as  to  those  principles  of  government  which 
most  appeal  to  us.  All  this  is  doubtless  true.  The 
hollowness  of  our  excuse,  it  is  claimed,  is  exposed, 
however,  when  we  ask  ourselves  as  a  people 
whether  we  would  have  been  willing  to  have  spent 
on  education  and  sanitation  in  the  Philippines, 
without  political  control  and  without  hope  of 
economic  gain,  the  money  we  have  parted  with  for 
their  possession.  The  answer  must  be  promptly 
in  the  negative.  The  development  of  the  Philip- 
pines in  the  fashion  which  we  use  as  an  excuse,  we 
are  told,  renders  our  future  punishment  all  the 
more  assured,  for  that  every  Filipino  whom  we 
train  according  to  our  ideas  must  ask  himself  why 
our  practices  in  the  Philippines  in  matters  of  gov- 
ernment have  not  accorded  mth  the  principles  we 
maintain  as  valid  at  home.  Thus  he  grows  to  be  a 
more  and  more  intelligent  and  dangerous  opponent 
of  American  rule.  In  the  end  it  is  claimed  as 
manifest  to  all  v.^ho  will  not  shut  their  eyes  that 
the  Philippines  will  gain  their  independence  from 
us  with  no  thanks  returned  to  America. 

If  our  exploit  in  imperialism  in  violation  of 
fundamental  International  Law,  and  involving,  as 
said,  a  strong-arm  taking  of  political  povs^er  for 
economic  benefits,  should  seem  too  painful  a  sub- 
ject to  pursue,  let  us  ask  ourselves  the  net  gain  to 


80  democracy's  international  law 

Germany  in  the  long  run  through  the  taking  of 
Alsace-Lorraine.  Assuredly  this  was  one  of  the 
elements  which  made,  some  time  or  other,  another 
Franco-German  war  a  practical  certainty.  It  gave 
an  impetus  to  Germany's  course  of  military  devel- 
opment and  consequent  imperialistic  adventure 
which  would  have  ]3een  largely  lacking  if  these 
lands  had  not  been  taken. 

If  w^e  need  other  evidence  that  violations  of 
natural  right  indulged  in  by  nations  carry  with 
them  an  appropriate  punishment  and  therefore 
stand  condemned  in  the  forum  of  real  International 
Law,  whatever  professors  may  sa^^,  or  fail  to  see, 
let  us  turn  to  India.  We  find  that  this  country, 
vast  in  population,  was  first  seized  by  England  for 
the  benefit  of  a  trading  corporation;  and  that 
gradually  the  workings  of  the  corporation  were 
taken  over  by  the  English  government.  It  is  be- 
lieved that  for  two  centuries  it  has  been  exploited 
as  we  say  in  common  parlance  for  the  benefit  of 
England.  In  fact  this  belief  has  but  the  semblance 
of  truth.  India  has  been  held  for  the  benefit  of 
the  English  army ;  for  the  benefit  of  that  small  sec- 
tion of  English  society  which  has  furnished  its 
civil  servants;  for  a  little  circle  of  commercial 
exploiters,  and  to  the  detriment  of  the  average 
man  of  England.  For  what  has  this  adventure 
produced!    Its  retention  has  made  necessary  an 


IMPERIALISTIC  ADVENTURE  81 

enormous  navy  and  an  increased  army.  Gibralter, 
wliicli  has  no  proper  relation  to  England,  has  been 
taken  to  keep  the  naval  route  clearer.  The  same 
reason  has  justified  the  holding  of  Malta,  with  no 
natural  geographical  or  other  relation  to  England. 

Again,  England,  by  doubtful  methods,  took  hold 
of  Egypt,  and  made  a  subject  nation  of  millions  of 
people  who  know  England  only  to  hate  her.  Aden 
was  added  to  the  list  to  help  complete  the  line  of 
protection.  The  impoverished  and  suffering  mil- 
lions pf  the  English  Islands,  many  of  them  stunted 
in  their  physical  growth  and  mental  development, 
attest  the  failure  of  the  English  in  this  imperial 
enterprise.  It  is  true  as  ever  that — ''Hell  is  a  city 
much  like  London." 

We  may  say  all  this  with  genuine  admiration  for 
the  superior  progress  in  establishing  and  render- 
ing secure  their  rights,  England's  subjects  have 
made  during  the  centuries.  To  England  we  owe 
much  of  the  political  and  social  advances  we  en- 
joy and  which  we  fondly  believe  superior  to  those 
enjoyed  by  the  citizens  of  other  nations.  She  her- 
self has  failed  to  carry  into  international  relations 
those  ideas  of  right  action  which  she  has  been 
compelled  to  recognize  as  paramount  between  man 
and  man  at  home,  and  the  handwriting  on  the  wall 
grows  more  and  more  distinct. 


82  democracy's  international  law 

It  is  a  dreary,  sordid  history  we  have  to  re\'iew 
when  we  consider  the  degrading  growth  and  cor- 
rupting decay  of  governments  which  have  indulged 
in  foreign  conquest — a  history  from  which  men 
have  so  far  learned  little  and  International  Law  as 
taught  has  learned  nothing.  Take  the  instances 
which  naturally  spring  first  to  one's  mind.  We 
have  Spain  with  its  wonderful  colonies,  and 
Portugal  in  a  like  situation,  each  after  infinite  ex- 
penditure of  men  and  money  flattering  itself  with 
the  story  of  its  greatness  only  to  sink  reduced  to  a 
low  scale  of  relative  standing  among  the  nations 
of  the  world.  England  in  a  more  modern  way  fol- 
loAvs  their  example.  AVe  have  the  United  States 
feebly  tracing  the  same  course,  tormented  by  con- 
science and  suffering  materially.  All  these  things 
have  been  done  in  the  name  of  the  glory  of  the 
kingdom,  or  empire,  or  we  might  claim  for  the 
United  States  that  of  the  American  people.  Each 
instance  has  brought  unearned  and  undeserved 
wealth  to  a  select  few.  Each  instance  has  spelt 
poverty  and  moral  degradation  to  the  immense 
mass.  Such  violations  of  real  International  Law, 
if  one's  taste  be  not  too  particular,  may  seem 
commendable  in  autocratic  government.  They 
have  notliing  in  connnon  with  democracy,  the 
duty  of  which  is  to  secure  the  wellbeing  of  the 
common  man  above  all  things  else. 


IMPERIALISTIC   ADVENTUEE  83 

The  universal  results  of  these  attempts  to  sub- 
ject alien  and  foreign  nations  to  the  rule  of  the 
conqueror,  \yith  the  consequent  injury  and  ruin  of 
nations  taking  this  course,  points  to  the  existence 
of  a  natural  Law  of  Nations  infinitely  more  sacred 
than  the  words  of  the  printed  page. 

We  will  be  told  that  this  may  be  true,  but  it  is 
all  too  idealistic  for  a  practical  world.  But  prac- 
tical men,  ready  to  take  momentary  advantages  of 
opportunities  for  material  gain,  have  brought 
enough  destruction  upon  the  world.  Idealism 
should  have  its  day.  Meanwhile  we  will  not  forget 
that  millions  of  men  have  offered  up  their  lives  for 
false  ideals.  Our  duty  to  discover  the  true  ones 
in  international  affairs  is  imperative. 


84  democracy's  international  law 


CHAPTEK  ^^II 

DEFICIENCIES  OF  INTERNATIONAL  COURTS  UNDER 
PRESENT  CONDITIONS 

''Justice,  Sir,"  said  Daniel  Webster,  "is  the 
great  interest  of  men  on  earth."  There  is  little 
doubt  that  in  making  this  statement  Webster 
phrased  an  universal  aspiration.  Because  of  this 
concern  of  mankind,  it  is  easy  to  understand  that 
in  seeking  to  build  such  a  world  state  as  would 
insure  justice  and  consequent  peace  men  should 
have  turned  to  the  idea  of  courts.  The  unfortunate 
fact  is  that  in  so  doing  mechanism  has  been  em- 
phasized rather  than  principle.  Instead  of  in- 
quiring diligently  into  the  elements  of  justice,  how- 
ever administered,  the  machinery  which  we  use  to 
obtain  justice  has  seemed  superior  to  the  spirit 
which  must  guide  the  machinery.  We  have  acted 
as  though  we  thought  that  if  we  once  possessed  the 
tools  justice  would  be  ground  out  automatically, 
without  further  effort  on  our  part.  Laboriously 
we  have  been  placing  the  cart  before  the  horse. 
The  point  of  the  argument  has  been  missed.  We 
might  as  well  regard  China  as  a  land  of  justice  be- 
cause it  possesses  courts  and  judges.  We  would 
overlook  the  fact  that  in  China  a  judge  vnW,  with 
the  same  vocal  inflection,  direct  a  man's  head  to 
be  removed  whether  he  steals  ten  pieces  of  * '  cash ' ' 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  85 

or  murders  his  wife.  The  principles  of  even- 
handed  and  comiDensatory  justice  are  unknown,  al- 
though the  courts  function  with  certainty  and  ex- 
pedition. We  must  awake  to  the  fact  that  there  is 
no  magic  in  the  name  of  court. 

The  conception  remains  prevalent,  however, 
that  if  we  but  establish  a  body  which  we  may  call 
a  court,  differences  between  nations  will  be  set- 
tled and  war  will  cease  automatically,  or  at  least 
through  the  efflfux  of  time  and  by  the  growth  among 
nations  of  the  habit  of  resorting  to  judicial  pro- 
cesses. It  is  forgotten  that  the  judicial  hanging  of 
sheep  stealers  and  highway  robbers  in  England, 
persisted  in  over  hundreds  of  years,  did  not  make 
life  more  secure  or  appreciably  affect  the  census 
of  thieves.  Better  conditions  prevailing  in  Eng- 
land and  in  this  country  were  accomplished  by  the 
rise  in  the  standards  of  comfort,  education  and 
morality  which  was  going  on  entirely  outside  of 
courts  during  all  the  time  that  the  gibbet  and 
chains  were  familiar  spectacles.  This  rise  has 
gradually  educated  the  courts  themselves  into 
clearer  ideas  of  that  justice  with  which  they  were 
originally  unfamiliar  even  superficially.  For 
these  reasons  we  should  stress  the  study  of  jus- 
tice rather  than  that  of  forms  of  administration, 
whether  classified,  under  present  nomenclature,  as 
legislative,  executive,  or  judicial. 


86  DEMOCRACV'S  INTERNATIONAL  LAV/ 

In  our  search  we  will  not  forget  that  peace, 
which  it  is  thought  will  be  brought  about  through 
the  establishment  of  courts,  is  not  a  thing  to  be 
sought  for  as  a  tangible  good,  but  will  be  the 
sequence  of  knowledge  and  practice  of  justice, 
coupled  with  a  gradual  suppression  of  interested 
ambitions,  unenlightened  selfishness  and  national 
lawlessness. 

The  courts  at  best  have  but  limited  usefulness. 
They  interpret  or  administer  what  is  reputed  to 
be  law  or  what,  under  all  the  circumstances  of  the 
case,  bearing  in  mind  existing  acceptations  of  law, 
TciRY  be  regarded  as  proper.  AVhile  we  speak  of 
Ihem  as  courts  of  justice,  they  are  but  imperfectly 
so  even  in  private  affairs.  Up  to  the  present  time 
it  has  never  been  proposed  in  any  authoritative 
way  to  establish  international  courts  of  justice  ap- 
proximating in  their  workings  even  to  the  imper- 
fect advancement  attaching  to  those  for  the  set- 
tlement of  disputes  of  individuals. 

We  will  not  subject  ourselves  to  any  illusions 
witli  regard  to  courts.  They  are  not  better  than 
the  intellectual  and  moral  surroundings  of  judges 
would  require.  Th(^y  make  no  innovations.  They 
blaze  no  trails.  They  are  essentially  and  neces- 
sarily reactionary.  In  such  advances  as  they 
make,  from  the  nature  of  things  they  are  often  be- 
hinrl  the  best  thought  of  the  community.    Their  er- 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  87 

rors  and  their  slowness  of  advance  are  continually 
corrected  even  in  this  country  by  statutes  more 
directly  expressing  public  progress  or  by  Consti- 
tutional amendment.*  This  is  not  to  attack  them 
or  to  minimize  their  usefulness,  but  simply  to  state 
the  facts  of  the  situation.  If  we  consider,  there- 
fore, our  experience  within  the  nation,  we  have  no 
right  to  expect  large  growth  in  our  knowledge  and 
application  of  justice  to  come  through  the  exist- 
ence of  courts. 

At  the  most  an  international  court  as  now  con- 
templated, and  we  shall  refer  to  the  subject  later, 
will  be  a  court  of  law  and  not  of  justice  (whatever 
name  be  given  it),  two  things  confusedly  merged 
into  one  in  the  public  mind.  Even  as  to  the 
national  courts  there  is  a  certain  truth  in  the  re- 
mark of  a  well-known  jndge  that  the  purpose  of 
courts  is  not  to  administer  justice  but  to  settle 
disputes.  To  illustrate  the  difference  between  the 
administration  of  law  and  the  administration  of 
justice  by  a  national  court  we  will  take  the  ease  of 
a  fugitive  negro  slave  before  the  war  who  had 
been  found  in  a  Northern  State.  Courts  of  law, 
being  then  as  now  controlled  by  statute,  would 
direct  a  return  of  the  fugitive  to  the  master.    This 


*  E.  G.:  As  to  statutes,  Federal  Employers'  Acts,  revising  "Fel- 
lowservant ' '  and  ' '  assumption  of  risk ' '  doctrines  of  courts,  and  as 
to  Constitutional  amendmnets,  the  "Income  Tax  amendment," 
reversing  the  ruling  of  the  United  States  Supreme  Court. 


88  democracy's  international  law 

was  done  even  when  the  whole  community  ab- 
horred the  action  taken  and  the  judge  himself  felt 
that  he  was  inflicting  injustice.  Many  a  time  has 
it  occurred  in  other  cases  that  the  judge  has  de- 
tested the  thing  he  was  called  upon  to  do,  but  as  a 
servant  of  the  State  he  has  followed  the  course  its 
codes  have  laid  down  for  him.  We  need  not  follow 
this  line  of  discussion  further.  It  perhaps  suffi- 
ciently appears  already  that  law  and  justice  are 
not  synonymous  and  that  even  in  national  affairs 
we  have  much  to  do  to  make  their  lines  coincident. 
Internationally  we  can  scarcely  be  said  to  have 
commenced  this  work. 

In  discussing  international  courts  there  are  two 
great  questions  about  which  we  should  make  our- 
selves entirely  clear,  as,  lacking  clarity  of  vision 
with  regard  to  them,  we  are  likely  to  meet  with 
severe  disappointments.  The  first  of  these  ques- 
tions is,  what  shall  be  the  basic  principles  which 
must  control  the  operations  of  an  international 
court?  The  second  is,  what  shall  be  the  limitations 
or  the  extent  of  jurisdiction  of  such  a  court? 

Let  us  address  ourselves  to  the  first  of  these 
questions  and  determine  if  we  may  whether,  in  the 
existing  state  of  what  is  called  International  Law, 
we  may  expect  from  an  international  court  results 
commensurate  with  its  assumed  importance.  If 
we  find  as  the  result  of  our  studies  that  the  princi- 


DEFICIENCIES  OF  INTERXATIONAL  COURTS  89 

pies  wliicli  as  matters  now  stand  are  to  control  the 
operations  of  the  court  are  in  themselves  outworn, 
medieval,  corrupt  and  false,  and  that  the  court  in 
its  findings  is  to  be  guided  by  them,  we  must  con- 
clude that  the  workings  of  the  court  will  produce 
a  so-called  justice  which  is  warped,  twisted,  and 
rotten.  There  is  no  secret  jorocess  by  which  dross 
passing  through  the  furnace  of  a  courtroom  \\i.ll 
be  converted  into  gold. 

Without  taking  the  time  at  this  point  to  elabo- 
rate the  argument,  we  many  enumerate  a  few  of 
the  many  vicious  propositions  which  today  would 
be  accepted  by  a  court.    Among  them  are : 

A  state  is  a  non-moral  creation,  only  to  be  held 
responsible  to  others  for  its  actions  by  its  own 
consent. 

A  state  possesses  such  a  right  of  sovereignty  as 
enables  it  by  force  if  it  can  to  impose  its  will  on 
other  states  without  being  judicially  accused  of 
wrong  for  so  doing. 

A  state  must  judge  for  itself  what  affects  its  own 
honor,  vital  interests  or  independence. 

A  state,  after  a  successful  war,  has  a  right  to 
impose  its  will  upon  the  vanquished. 

A  state,  provided  it  has  sufficient  power,  may 
possess  interests  wdthiii  the  jurisdiction  of  another 
state  and  dictate  the  management  of  its  affairs. 


90  democracy's  international  law 

A  state  may  acquire  from  an  alien  conqueror 
complete  jurisdiction  over  a  vanquished  people, 
violence  creating  title. 

If  we  commence,  as  under  present  rules  we  must, 
with  the  acceptance  of  the  propriety  of  such  a 
chaotic  condition  of  law  as  we  have  just  indicated, 
what  right  have  we  to  expect  that  any  court,  with 
its  conservatism  and  love  of  precedent,  can  bring 
about  changes  beneficial  to  mankind?  The  changes 
must  come  from  some  other  source,  and,  being 
made,  it  will  be  the  duty  of  the  courts  to  give  them 
suitable  application.  We  are  building  our  pro- 
posed judicial  system  upon  a  shifting  bed  of  sand. 

But  if  we  had  basic  law  such  as  self-respecting 
and  reallj^  intelligent  courts  might  administer  un- 
der- all  circumstances,  then,  second,  w^hat  about  the 
jurisdiction  we  propose  to  give  our  international 
judicial  bodies? 

National  courts  as  at  present  constituted  pos- 
sess infinite  powers  which  we  shall  find  refused  to 
international  courts.  The  national  court  has 
powder  to  say  "Thou  shalt  not"  as  well  as  "Thou 
shalt. "  While  no  criterion  as  to  their  relative  im- 
portance, it  is  interesting  to  note  that  among  the 
Ten  Commandments  given  the  Children  of  Israel 
there  are  eight  which  in  effect  say  "Thou  shalt 
not,"  and  there  are  but  two  which  in  truth  are 
affirmative  commands. 


DEFTCIEKCIES  CP  IXTEENATIOXAL  COURTS  91 

The  ordinary  court  of  law  will  enter  a  judgment 
iixing  the  liability  of  the  defendant  and  command- 
ing payment  in  a  civil  case  or  prescribing  condem- 
nation in  a  criminal  one.  Up  to  this  present  all 
that  international  courts  of  arbitration,  as  they 
are  called,  have  ordinarily  accomplished  has  been 
to  command  the  payment  of  money  for  damages 
inflicted  or  losses  incurred.  It  is  true  that  in  some 
instances  these  courts  have  been  authorized  to 
lay  down  rules  of  future  conduct.  In  so  doing 
they  have  not  acted  in  a  judicial  capacity  but  in  a 
legislative  one,  and  to  this  extent  have  not  been 
true  courts. 

Let  us  revert  to  the  further  powers  of  our 
national  courts.  They  may  say,  as  international 
courts  may  not  up  to  the  present,  *'Thou  shalt 
not,"  They  stand  in  the  way  of  trespass  upon 
property  and  in  certain  instances  of  trespass  upon 
life.  They  have  a  general  power  to  re-place  the 
parties  in  litigation  in  the  positions  they  occupied 
before  offenses  were  committed.  Their  jurisdic- 
tion may  also  be  what  one  may  call  anticipatory. 
Commission  of  wrong  being  feared,  the  strong  arm 
of  the  court  is  invoked  to  prevent  it.  The  very 
existence  of  these  powers  has  in  innumerable  in- 
stances so  influenced  the  minds  and  conduct  of  men 
as  to  make  resort  to  them  unnecessary.     These 


92  democracy's  international  law 

things  may  not  be  done  internationally  lest  we 
offend  the  mystical  sovereignty  of  the  State. 

In  addition  to  the  ordinary  remedies  to  which 
we  are  accustomed  among  ourselves  there  may  ex- 
ist the  writ  of  quo  warranto  through  which  the 
court  inquires  as  to  why  particular  offices  are 
taken  or  held  without  right.  There  is  further  in  the 
common-law  practice  the  writ  of  mandamus,  by 
virtue  of  which  the  court  directs  ordinarily  not  the 
payment  of  money  but  the  doing  of  things  which 
have  been  left  undone  and  which  in  law  should  be 
done.  There  are  of  course  further  legal  remedies, 
but  these  mil  suffice  for  the  purpose  of  illustra- 
tions. Upon  these  fields  no  international  confer- 
ence has  yet  had  sufficient  temerity  to  venture. 

If  it  be  thought  that  some  error  is  made  in  these 
views  with  regard  to  the  narrowness  of  the  juris- 
diction of  international  courts,  let  us  consider  a 
])ioposed  field  of  action  as  recently  worked  out  by 
eminent  jurists  who  recommended  their  scheme 
to  the  League  of  Nations.  And  such  comment 
as  we  shall  make  will  not  be  directed  to  the 
defects  of  their  work.  We  point  out  that  with 
abundant  foundation  to  be  discovered  in  the  so- 
called  Law  of  Nations  of  today,  such  work  is  of 
comparatively  slight  value  because  the  founda- 
tions are  in  themselves  rotten. 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  93 

In  approaching'  the  subject  the  jurists  in  ques- 
tion had  in  mind  the  creation  of  what  they 
esteemed  to  be  a  court  of  justice  rather  than  a 
<}ourt  of  arbitration.  The  distinguishing  differ- 
ence between  the  two  is  that  a  court  of  arbitra- 
tion carries  with  it  the  implication  of  adjustment 
and  settlement,  the  bringing  together  of  nations 
on  an  agreeable  sort  of  basis  not  necessarily  that 
of  exact  law,  while  on  the  other  hand  a  court  of 
justice  is  presumed  to  act  in  strict  compliance  with 
the  universally  established  ideas  of  law.  The 
sources  of  International  Law  suggested  to  control 
the  judgTQent  of  the  new  court  were : 

"(1)  International  conventions,  whether  general  or  particu- 
lar, establishing  rules  expressly  recognized  by  the  contesting  states; 

"(2)  International  custom,  as  evidence  of  a  general  prac- 
tice, which  is  accepted  as  law; 

"(3)  The  general  principles  of  law  recognized  by  civilized 
nations ; 

"  (4)  Judicial  decisions  and  the  teachings  of  the  most  highly 
qualified  publicists  of  the  various  nations,  as  subsidiary  means  for 
the  determination  of  rules  of  law. '  '* 

Such  law,  however,  was  only  to  be  invoked, 
save  with  the  consent  of  two  opposing  parties, 
where  the  court  was  called  u]ion  to — 

"Hear  and  determine  cases  of  a  legal  nature  concerning: 
"(a)     The  interpretation  of  a  treaty; 
''(b)     Any  question  of  international  law; 
"  (c)     The  existence  of  any  fact  which,  if  established,  would 
constitute  a  breach  of  an  international  obligation; 

*  The  Project  of  a  Permanent  Court  of  International  Justice, 
by  Dr.  James  B.  Scott. 


94  democracy's  international  law 

"(d)      The  nature  or   extent   of   reparation   to  be  made   for 
the  breach  of  an  international  obligation ; 

"(e)     The  interpretation  of  a  sentence  passed  by  the  court."* 

While  other  matters  might  as  indicated  be  re- 
ferred to  the  court,  there  was  nothing  obligatory, 
morally  or  otherwise,  on  any  nation  to  make  such 
reference.  If  a  dispute  did  not  involve  the  matters 
above  mentioned  the  court  became  powerless. 

In  an  anticipatory  way,  preventing  in  advance 
the  rising  of  difficulties,  the  court  was  allowed  to 
suggest  provisional  measures  to  preserve  the  re- 
spective rights  of  either  party,  but  these  measures 
it  is  clear  from  the  whole  document  could  only  be 
suggested  in  cases  where  the  court  might  have  ulti- 
mate jurisdiction,  its  limitations  being  as  stated 
above.  The  sum  and  substance  of  it  is  that  only 
in  what  is  termed  a  "justiciable  matter"  should 
the  court  act,  and  that  otherwise  the  nations  were 
to  be  free  to  submit  matters  upon  which  they  were 
in  discord.  The  curious  thing  is  that  the  things 
which  were  left  outside  the  court's  powers  were 
the  very  things  about  wliicli  nations  fight,  and 
those  as  to  which  jurisdiction  was  to  be  given 
were  those  which  do  not  ordinarily  excite  the  pas- 
sions of  men.  This  will  seem  true  when  we  remark 
that  nations  ai'e  not  given  to  going  to  war  over 
questions  of  the  interpretation  of  treaties,  abstract 
propositions  of  International  Law,  the  existence  of 
facts  constituting  breach  of  international  obliga- 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  95 

tJoiis  (ordinarily  collection  of  debt  due  founded 
upon  postal  treaties  or  application  of  a  customs 
regulation  and  the  like)  or  the  nature  and  extent 
of  reparation  for  non-payment  of  a  debt.  They  go 
to  war  because  of  interference  with  what  they  as- 
sume to  be  their  vital  interests  or,  in  cases  now 
growing  rarer,  of  infringement  upon  what  they  are 
pleased  to  term  their  honor.  These  questions  are 
not  regarded  as  justiciable,  and  therefore  may 
only  be  made  the  subjects  of  examination  by  courts 
when  all  parties  agree. 

With  all  their  weaknesses  the  propositions  of 
the  jurists  were  too  advanced  for  adoption  liter- 
ally by  the  League  of  Nations. 

It  will  be  instructive  to  examine  through  an  illus- 
tration the  difference  under  these  rules  between 
the  attitude  of  national  and  international  courts. 
The  young  law  student  is  told  early  in  his  career 
of  the  complainant  seeking  relief  from  the  chancel- 
lor saying  that  he  and  the  defendant  had  engaged 
in  business  together  on  Hounslow  Heath;  that  in 
the  conduct  of  their  affairs  they  had  accumulated 
certain  watches,  purses  and  other  articles  of  value ; 
that  these  were  in  the  possession  of  the  defendant 
who  had  refused  an  accounting,  for  which  prayer 
was  made  to  the  court.  If  memory  serves,  the  com- 
plainant and  his  lawyer  w^ere  both  sent  to  jail  for 
conteinpt,  and  taught  that  no  accounting  between 


96  democracy's  international  law 

thieves  would  be  granted  by  a  court  of  justice,  and 
that  it  was  necessary  always  for  the  complainant 
to  come  into  court  with  clean  hands. 

Assume  that  nations  A  and  B  agree  that  for  the 
benefit  of  their  respective  nationals  they  mil,  by 
the  use  of  navies  and  judicious  suggestion  of  the 
use  of  armies,  and  other  forms  of  compulsion  or 
corruption  not  in  private  life  considered  legiti- 
mate, obtain  from  nation  C  (the  selection  of  the 
initial  is  purely  fortuitous  and  need  not  be  consid- 
ered as  indicative  of  any  particular  country)  busi- 
ness and  commercial  concessions  of  great  prospect- 
ive value.  Assume  success  in  the  undertaking. 
Assume  that  afterward  a  dispute  should  arise  be- 
tween nations  A  and  B  as  to  the  division  of  profits 
under  the  agreement  through  which  these  benefits 
were  obtained.  The  world  court,  as  it  exists, 
would  interpret  the  agreement  and  divide  the 
profits,  and  then  stop.  International  Law  would 
not  have  recognized  anything  inherently  wrong  in 
the  conduct  of  nations  A  and  B,  and  the  courts 
would  recognize  their  limitations  against  trench- 
ing upon  the  ''vital  interests"  or  "honor"  of  the 
disputants. 

Let  us  therefore  examine  and  discover  if  we  may 
what  these  things  are  which  are  so  incapable  of 
judicial  determination  that  even  courts  may  not 
ordinarily  examine  them. 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  97 

First  and  foremost  we  nieet  the  question  of  the 
vital  interests  of  the  State.  This  is  not  capable  of 
exact  definition.  They  are  what  a  State  says  they 
are  in  any  particular  instance.  They  vary  with  the 
size  of  the  State.  Those  which  are  not  vital  to 
Switzerland,  it  being  a  small  country  and  incapable 
of  enforcing  its  will  upon  others,  may  become  vital 
in  the  opinion  of  the  statesmen  of  Japan  when  she 
knows  that  by  force  of  arms  she  may  be  able  to 
compel  other  governments  to  accept  her  view.  In 
other  words,  the  connection  between  might  and 
vital  interests  is  a  close  one.  The  weak  nation 
possesses  no  vital  interest  which  may  be  main- 
tained as  against  the  strong  nation.  The  theory  of 
our  national  courts  that  they  enable  the  poor  man 
to  prevent  aggression  on  the  part  of  the  rich  finds 
no  place  in  this  proposed  international  jurisdic- 
tion. When,  therefore,  in  this  regard  we  entertain 
the  idea  that  an  international  court  will  be  a  pro- 
tection, we  find  ourselves  aided  by  nothing  more 
substantial  than  the  baseless  fabric  of  a  vision 
born  from  the  use  of  the  word  "court." 

But  more  specifically  what  are  the  vital  interests 
of  a  State  f  We  are  right  if  we  say  that  they  refer 
to  little  else  than  policies  of  aggression,  historic 
perhaps,  that  the  state  desires  to  pursue  as  against 
other  countries,  or  policies  which  find  their  roots  in 
a  fear  of  damage  to  be  inflicted  from  the  outside. 


98  democeacy's  inteenational  law 

Important,  too,  in  creating  these  vital  interests 
are  the  influences  of  the  economically  ruling  classes 
in  a  country.  If  they  have  determined  upon  the 
selfish  exploitation  of  particular  countries  con- 
trolled or  occupied  by  weaker  nations,  they  are 
often  able  to  influence  their  governments  to  pro- 
tect their  capital  invested  or  to  be  invested,  and 
the  selfish  interests  of  the  exploiters  by  a  jugglery 
of  language  become  the  vital  interests  of  the  State. 
Tyranny,  fear,  and  avarice  are  therefore  the 
originators  of  practically  every  "vital  interest" 
which  may  be  named.  Again  Ave  repeat,  these  are 
the  very  things  which  courts  are  ordinarily  given 
jurisdiction  to  check  in  our  national  field  of  action. 
The  formation  of  courts,  therefore,  which  are  for- 
bidden their  consideration  appears  to  confirm  the 
sanctity  of  vital  interests. 

Underlying  all  of  these  phases  of  vital  interests 
is  the  fact  that  the  State  fears  injustice  from 
others  or  intends  to  preserve  its  own  power  of 
committing  injustices.  If  all  nations  were  to  pool, 
as  it  were,  their  "vital  interests,"  and  submit 
themselves  without  reserve,  under  proper  condi- 
tions of  International  Law,  to  impartial  courts,  it 
would  speedily  be  discovered  that  so  far  as  the  im- 
mense mass  of  their  citizenship  was  concerned 
more  had  been  gained  by  the  apparent  sacrifice 
than  had  been  lost.    We  are  brought  again  to  the 


DEFICIENCIES  OF  INTERNATIONAL  COURTS  99 

conclusion  that  except  by  resolute  acceptance  of 
right  dealing  as  between  nations  all  the  parapher- 
nalia of  courts  so  far  proposed  will  lead  to 
nothing  and  that  this  study  is  one  to  be  pursued 
in  the  first  instance  far  outside  the  courtroom. 

We  have  as  a  next  reservation  that  of  honor. 
Internationally  this  offers  a  curious  study.  It  is 
not  dishonorable  among  nations  for  a  State  to  kill 
the  inhabitants  of  another  State,  possess  itself  of 
their  government  and  its  property,  subject  their 
inhabitants  to  the  slavery  of  debt,  take  away  such 
private  property  as  may  seem  desirable,  use  the 
lands  of  another  State  when  convenient  as  the  base 
of  attack  upon  a  third  State,  indulge  in  any  petty 
meanness  in  its  custom-houses  or  its  waterways  or 
railways ;  hamper  the  development  of  other  coun- 
tries to  the  advantage  of  a  few  of  its  o^ni  citizens, 
or  commit  an  enormous  number  of  other  offenses 
born  of  selfishness  or  greed.  All  of  these  acts 
in  the  eyes  of  the  nation  committing  them  are 
permissible  or  even  praiseworthy,  and  do  not  indi- 
cate a  defective  sense  of  morality  or  retarded  intel- 
lectual development  or  outraged  decency.  They 
are  all  honorable,  and  carry  ^vith  them  no  con- 
demnation judged  by  the  standards  of  existing 
Internationa]  Law  or  practice. 

The  failure  on  the  part  of  another  nation  to 
salute  a  flag  or  the  breaking  of  the  shield  of  a  Con- 


100  democracy's  international  law 

sulate  by  a  crowd  of  ragamuffins  may  be  an  infrac- 
tion of  honor  and  lead  to  war.  It  is  noteworthy, 
however,  that  this  will  never  take  place  unless  the 
nation  whose  honor  is  infracted  is  much  stronger 
than  that  the  citizens  of  which  have  committed 
the  offense.  If  the  nation  furnishing  the  offense, 
in  addition  to  being  weaker,  possesses  commercial 
possibilities,  the  control  of  which  would  add  to  the 
wealth  of  the  more  influential  classes  in  the  larger 
one,  the  infringement  upon  honor  becomes  more 
serious  and  less  capable  of  adjustment,  and  im- 
possible of  reference  to  arbitration.  Inaccessi- 
bility on  the  part  of  the. offender  will  also  affect 
the  requirements  of  honor.  A  supposed  insult 
to  the  United  States  committed  by  the  Swiss 
will  be  readily  condoned.  One  committed  by  Mexi- 
can citizens  becomes  very  acute.  The  weakness, 
accessibility,  and  potential  wealth  of  Mexico  some- 
how magnify  the  insult. 

''Independence"  must  not  be  arbitrated  or  be 
subjected  to  the  rude  decisions  of  courts.  In- 
dependence within  the  range  of  the  proper  activi- 
ties of  the  State — that  is,  internal — we  may  well 
understand,  and  with  this  independence  no  court 
would  undertake  to  interfere.  But  what  is  meant 
is  independence  in  the  actions  of  the  State  with 
relation  to  othei-  powers.  This  is  absurd  today  and 
non-existent.    Tlie  only  way  to  preserve  independ- 


DEFICIENCIES  OF  INTERNATIONAL  COURTS        101 

ence  is  to  sliut  tight  the  doors  of  the  nation  as  was 
done  by  Japan  before  the  advent  of  Connnodorc 
Perry,  or  to  be  an  outlaw  nation.  When  a  nation 
enters  the  family  of  nations  and  claims  the  benefits 
of  its  new  position,  it  is  no  longer  independent,  but, 
whether  it  so  wishes  or  not,  finds  that  all  nations  in 
its  jDosition  are  interdependent  and  controlled 
by  the  written  and  unwritten  laws  of  their 
environment. 

The  reservation  of  independence  simply  means 
that  the  State  shall  itself  be  the  judge  of  how^  much 
of  its  control  over  its  own  external  actions  it  parts 
with  by  entering  the  family  of  nations.  Social 
order  can  be  based  upon  no  such  proposition.  We 
either  keep  out  of  the  game  entirely  or  the  law^s  of 
society  determine  what  their  exactions  against  us 
shall  be.  We  must  be  either  a  hermit  or  an 
anarchist  whose  hand  is  against  all  government. 
We  cannot  be  social  and  unsocial  in  the  same 
breath. 


102  democracy's  international  law 


CHAPTER  IX 

SHOULD   ANY    INTERNATIONAL    DISPUTE    BE 
RESERVED  FROM  ARBITRATION^* 

A  man  presents  himself  at  the  portals  of  Ellis 
Island.  Our  laws,  the  justice  or  efficacy  of  which 
we  do  not  discuss,  require  us  to  question  him.  "Do 
you  believe  in  organized  government?"  He 
answers,  "I  believe  in  government,  of  course,  but 
let  it  not  interfere  "svith  me.  I  accept  it  so  long  as 
it  does  not  affect  my  personal  independence,  so 
long  as  it  leaves  me  master  of  whatever  concerns 
mine  honor  and  permits  me  to  avenge  myself  upon 
all  who  infringe  upon  that  honor.  I  believe  in  gov- 
ernment so  long  as  it  allows  me,  as  sovereign  over 
my  ow^l  destiny,  to  determine  for  myself  Avhat  in- 
terests are  vital  to  me  and  to  slay  those  who  in  my 
opinion  trench  upon  them."  To  the  man  v.iio  so 
replies,  we  say:  "Your  recognition  of  govern- 
ment is  formal ;  your  appreciation  of  right  as  be- 
tween man  and  man  is  undeveloped.  If  admitted 
to  our  country,  you  would  be  a  danger  to  our  well- 
being.  In  very  essence  you  are  an  anarchist  and 
as  such  may  not  enter." 


*  This  chapter  was  delivered  as  an  address  before  the  Pennsyl- 
vania Peace  Congress  May  18,  1908.  Subsequent  reflection  has 
shown  deficiencies!  in  international  courts  under  present  conditions 
preventing  them  from  having  large  value.     See  Chapter  VIII. 


AKBITRATING  ALL  INTEENATTONAL  DISPUTES      103 

Let  US  suppose  a  new  State  has  arisen  demand- 
ing recognition  and  admission  to  the  family  of 
nations.  Its  representatives,  when  entering  into 
treaty  obligations  with  other  nations,  are  per- 
mitted to  withdraw  from  submission  to  the  judg- 
ment of  any  tribunal  formed  to  adjudicate  inter- 
national difficulties,  all  questions  which  affect  itsN, 
independence,  its  honor  or  its  vital  interests, 
'\Miether  in  fact  a  dispute  involves  any  of  these 
elements,  it  retains,  and  is  recognized  as  having  a 
right  to  retain,  the  privilege  of  determining  for 
itself.  At  most  today  we  ask,  not  insist,  that  it 
shall  arbitrate  pecuniary  claims. 

When  such  a  position  is  taken  in  International 
Law,  is  not  anarchy  grown  large  legitimatized? 
Little  harm  can  the  sentiments  of  one  man  do. 
His  opinions  and  interests  will  be  corrected  and 
controlled  by  the  opinions  and  interests  of  his 
neighbors.  Perforce  he  must  submit  to  the  judg- 
ment of  his  fellows  all  the  questions  as  to  which 
theoretically  he  claims  the  right  of  self-determina- 
tion. But  when  a  million  men,  calling  themselves 
a  State — which,  after  all,  is  but  a  collection  of 
human  units — determine  without  restraint  its 
justification  for  war  over  such  questions  and  even 
settle  for  their  very  existence,  thus  claiming 
the  right,  governed  only  by  their  own  sense  of 
justice,  to  steal  from  and  to  murder  another  mil- 


104  democracy's  international  law 

lion  of  human  units  who  exercise  a  similar  power, 
we  have  chaos  unspeakable — chaos  legitimatized. 
By  International  Law,  paradoxically  speaking, 
thus  we  have  regulated  chaos.  And  yet  analysis 
shows  that  after  all  there  is  presented  to  us  but 
the  simple  problem  with  which  w^e  opened, — the 
right  of  anarchy, — a  problem  confused  only  by  the 
indefinite  multiplication  of  the  participants. 

And  we  will  not  lose  sight  of  the  fact  that  even 
as  to  pecuniary  claims,  in  almost  every  case  a  na- 
tion may  refuse  arbitration,  upon  the  pretense  that 
the  very  advancement  of  such  claims  is  a  reflection 
upon  its  honor,  perhaps  because  there  is  offered  a 
suggestion  deemed  disgraceful  to  its  administra- 
tive or  judicial  officers,  to  which  suggestion  it  re- 
fuses to  submit.  Must  we  not,  then,  conclude  that 
our  International  Law  is  but  taking  its  first  few 
feeble  steps ;  that  we  are  just  entering  upon  a  long 
and  painful  period  of  education,  the  end  of  which 
will  be  to  assimilate  international  justice  to 
national  justice? 

Taking  a  look  into  the  future,  we  may  recognize 
that  the  time  nmst  come  when  such  a  thing  as  In- 
ternational Law  relating  to  warfare  will  be  as  ob- 
solete as  is  today  common  and  statute  law  relating 
to  the  status  of  slaves.  I  remember  as  a  boy  read- 
ing a  book,  then  old,  laying  down  the  iniles  of  the 
Code  Duello.    Today  such  a  work  prescribing  the 


ARBITRATIXG  ALL  INTERNATIONAL  DISPUTES      105 

amenities  of  private  murder  would  seem  as  out  of 
place  in  our  civilization  as,  let  us  hope,  in  the 
future  will  seem  the  half  of  the  volumes  of  Inter- 
national Law  which  are  now  given  over  to  the  ex- 
amination of  the  courtesies  of  public  slaughter. 

But  our  course  seems  clear.  We  must  develop 
the  idea  of  arbitration,  insist  that  no  question  is 
too  small,  no  interest  too  great,  to  be  subjected  to 
the  judgment  of  disinterested  and  competent  men, 
for,  internationally  as  well  as  in  our  private  lives, 
something  on  its  face  immaterial  may  lead  to  con- 
sequences coloring  history.  Tracing  the  causes  of 
wars  to  their  obscure  beginnings,  how  often  we 
find  that  foolish  jealousies,  accidental  or  inten- 
tional lack  of  observance  of  the  smaller  courtesies 
of  life,  have  lead  on  and  on  to  the  slaughter  of 
thousands.  But  if  apparently  small  things  can 
with  justice  and  advantage  be  settled  between  man 
and  man  and  nation  and  nation  by  submission  to 
impartial  men,  with  how  much  more  obvious  rea- 
son should  the  larger  and  more  dangerous  matters 
take  the  same  course!  And,  after  all,  can  those 
who  take  part  in  them  best  determine  whether  the 
matters  in  dispute  be  large  or  small,  be  great 
enough  to  justify  the  killing  of  thousands,  or  in- 
significant enough  to  be  atoned  for  by  the  pay- 
ment of  a  few  dollars  I 


106  democracy's  international  law 

How  needless  does  calm  investigation  show  to 
have  been  even  modern  wars  conducted  by  men 
priding  themselves  upon  their  civilization?  Can 
any  one  living  tell  beyond  a  peradventure  what  was 
the  Schleswig-Holstein  question,  which  involved  a 
bloody  conflict.  Was  there  just  and  sufficient 
cause  for  the  Franco-Pnissian  struggle?  Does 
any  one  attach  large  importance  to  the  sup])osed 
questions  leading  to  the  Crimean  War,  and  was 
the  Charge  of  the  Light  Brigade,  immortalized  in 
poetry,  sufficient  return  to  the  world  for  thousands 
of  deaths  among  the  subjects  of  four  nations! 

When  we  look  back  at  all  these  struggles,  stand- 
ing in  the  disinterested  attitude  of  strangers  to 
them,  living  as  short  a  time  as  from  thirty  to  fifty 
years  after,  and  consider  their  doubtful  or  inade- 
quate causes,  can  we  not  agree  that  the  arbitra- 
ment of  a  grou})  of  cool  and  disinterested  men  liv- 
ing contemporaneously  could,  if  asked,  have  af- 
forded a  peaceful  and  honorable  solution?  And 
if  in  any  of  these  cases  the  causes  Avere  so  slight  or 
so  involved  and  so  difficult  of  reasonable  statement 
as  to  preclude  reference  to  arbitration,  may  we  not 
think  such  fact  to  be  sufficient  to  condemn  those 
engaging  in  these  wars  as  mere  l)rawlers  in  the 
family  of  nations  ? 

Visible  advances  toward  the  goal  I  have  in- 
dicated   have    been    made,    and    in    the    making 


AKBITRATT^^G  ALL  INTERNATIONAL  DISPUTES      107 

America  lias  taken  an  honorable  and  leading  part. 
Repeatedly  have  we  arbitrated  boundary  ques- 
tions, questions  of  a  nature  which,  in  a  less  ci\dl- 
ized  age  or  with  less  advanced  participants,  would 
have  led  to  frightful  wars  and  have  been  regarded 
by  the  countries  in  dispute  as  affecting  their  honor 
and  vital  interests.  Very  many  commissions  to 
which  we  have  been  parties  have  settled  claims 
disputes  touching  wrongs  to  individual  citizens  of 
a  character  which,  under  less  happy  circumstances, 
would  have  spelt  war,  and  for  even  smaller  ag- 
gravation than  has  been  involved  in  them  less 
favored  nations  have  mth  heartiness  entered  upon 
throat-cutting  and  destruction.  Can  we  not  even 
today  take  pride  in  the  Alabama  Claims  Commis- 
sion, which  satisfactorily  solved  questions  which 
might  be  classified  as  of  honor  and  vital  interests, 
although  ostensibly  determining  only  pecuniary 
liability,  and  which  made  this  settlement  at  a  cost 
which,  compared  with  that  of  a  week  of  war,  was 
infinitesimal'? 

Even  in  the  small  matter  of  claims  of  individual 
citizens  no  nation  can  properly  be  a  judge  in  its 
own  cause.  Many  a  time  has  this  been  illustrated, 
and  I  will  refer  but  briefly  to  its  latest  demonstra- 
tion with  regard  to  Venezuela.  When  the  ten  com- 
missions sat  in  Caracas,  in  1903,  to  determine  the 
claims   of   as   many  nations   against   Venezuela, 


108  democracy's  international  law 

there  were  presented  before  them  demands  aggre- 
gating in  round  numbers  $36,000,000.  The  commis- 
sions and  umpires  determined  that  but  $6,500,000 
should  be  paid,  or,  roughly,  eighteen  per  cent,  of 
the  original  amount  of  the  demands.  One  nation, 
as  a  condition  precedent  to  the  execution  of  the 
protocol  of  arbitration  of  her  remaining  claims, 
demanded  payment  in  full  in  advance  of  certain 
claims  aggregating  nearly  $350,000.  For  precisely 
similar  claims  submitted  to  arbitration  she  re- 
ceived twenty-eight  per  cent,  of  her  demands,  indi- 
cating fallibility,  as  I  believe,  when  she  acted  as 
her  own  judge,  and  demonstrating  that  the  advance 
pa^mient  was  largely  unjustifiable.  The  experience 
of  other  nations  before  like  tribunals  was  of  the 
same  general  nature.  And  the  histors''  of  claims 
arbitrations  furnishes  many  similar  instances. 

But  what  is  honor,  about  which  nations  hesitate 
to  arbitrate!  For  theft,  for  murder,  we  have  a 
definite  measure,  born  of  the  universal  conscience, 
the  same  yesterday,  today  and  forever ;  but  honor, 
as  the  term  is  applied,  is  a  mental  concept  varying 
with  the  mood  of  the  times.  He  who  accuses  my 
honor  does  not  rob  me.  Honor  is  only  to  be  lost 
by  my  personal  act.  The  impeachment  of  my 
honor  may  call  for  self-examination  to  determine 
whether   the   accusation   be   well   founded.     The 


AEBITRATING  ALL  INTERNATIONAL  DISPUTES     109 

death  of  the  offender  does  not  adjudicate  the  false- 
hood of  the  accusation. 

But  if  the  delivery  of  an  insult  be  considered  to 
be  an  impeachment  of  honor,  should  the  reply 
come  in  the  shape  of  war?  If  a  man  or  a  nation 
be  insulted,  as  we  ter  mit,  is  the  insult  extinguished 
by  the  death  of  the  insulter?  Does  not  his  killing 
■convict  us  rather  of  want  of  discretion  and  temper? 
Is  not  the  best  answer  a  well-ordered  life  and  es- 
tablished good  reputation?  Should  not  other 
resort  be  forbidden  to  us  than  declination  of 
further  relations  with  the  offender,  who,  individ- 
ual or  nation,  has  merely  sinned  against  good 
manners  ? 

A  reservation  of  independence  as  not  the  subject 
of  arbitration  seems,  on  analysis,  meaningless 
though  harmless.  Arbitration  postulates  an  agree- 
ment between  equals.  Questioning  the  independ- 
ence of  one  party  or  the  other  involves  a  doubt  as 
to  their  equality  and  is  foreign  to  the  idea  of 
arbitration. 

When  we  treat  of  vital  interests  we  touch  a  sub- 
ject never  properly  to  be  withdrawn  from  arbitra- 
tion. What  are  vital  interests?  They  are  today 
Tvhatever  the  nation  declares  to  be  such  and  with.- 
draws  from  arbitration.  The  so-called  vital  inter- 
ests are  matters  of  commerce,  trade  and  politics. 
As  to  matters  of  trade  and  commerce,  we  shall  sub- 


110  democracy's  international  law 

mit  that  their  advancement  as  a  basis  for  vital  in- 
terests is  founded  upon  a  misconception  of  the 
purposes  of  government.  As  I  take  it,  govern- 
ments are  formed  to  preserve  the  true  hberty  of 
the  individual,  to  protect  him  in  his  rights  of  per- 
son and,  as  subordinate  to  his  rights  of  person,  his 
rights  of  property.  They  are  not  formed  to  ex- 
tend and  develop  commerce  and  trade  as  such. 
Properly  speaking,  no  nation  has  political  inter- 
ests beyond  its  o\\tii  borders,  and  were  we  to  enter 
upon  the  reign  of  arbitration,  no  question  of  politi- 
cal interest,  as  we  shall  attempt  to  demonstrate, 
could  properly  arise. 

Politically  speaking,  vital  interests  are,  when 
analyzed,  found  to  be  based  upon  either  a  desire  to 
ultimately  possess  something  now  belonging  to 
another  or  a  fear  that  a  strong  nation  may  vio- 
lently so  enlarge  itself  as  to  endanger  us.  With 
the  thorough  establishment  of  unrestricted  arbi- 
tration we  will  not  be  able  to  indulge  our  predatory 
instincts  at  the  expense  of  our  neighbors.  With 
such  condition  we  will  not  fear  lest  another  nation 
so  aggrandize  itself  by  violence  as  to  be  a  source 
of  danger  to  us.  At  one  and  the  same  time  we 
would  restrain  our  o^vn  unjust  acquisitiveness  and 
we  would  lose  our  fear.  The  thorough  establish- 
ment, therefore,  of  arbitration  means  the  cancella- 


AEBITRATING  ALL  INTERXATIONAL  DISPUTES     111 

tion  of  the  term  "vital  interests"  as  applied  to 
politics. 

Can  we  hope  for  justice  from  arbitration?  We 
might,  in  view  of  the  course  of  our  discussion,  re- 
spond by  asking,  Has  justice  been  obtained  from 
war?  Long  ago  legislators  found  that  the  wager 
of  battle  failed  to  secure  justice  as  between  man 
and  man.  Without  lengthening  the  discussion,  we 
may  believe  that  armed  conflict  has  not  on  the 
whole  advanced  the  rule  of  right.  While  at  one 
time  war  has  served  to  check  inordinate  ambition, 
at  as  many  others  it  has  furthered  its  purposes. 
We  may  concede  that  in  private  matters  justice 
has  often  gone  forward  with  halting  steps,  has 
even  at  times  seemed  to  go  baclTward;  yet  who 
among  us  would  dispense  with  the  conclusions  of 
judge  and  jury  and  revive  the  wager  of  battle  ? 

From  the  beginning,  with  the  advantage  of 
national  precedents  and  experiences,  we  may  ex- 
pect arbitration  to  bring  us  approximate  justice. 
That  always  exact  justice  should  be  rendered  may 
not  be  expected.  The  members  of  our  Supreme 
Court,  differing  as  they  frequently  do  most  vitally, 
will  not  say  that  this  tribunal  has  never  erred. 
But,  despite  the  possibility  of  error,  Ave  find  that 
order  and  the  welfare  of  the  community  must  be 
maintained  even  at  the  chance  of  individual  injus- 
tice, a  chance  which  no  human  skill  can  eliminate. 


112  democracy's  international  law 

But  arbitral  history  leads  us  to  the  conclusion 
that  more  than  an  approximation  of  right  may  be 
expected,  that  a  tribunal  which  is  the  center  of 
observation  by  the  whole  world  will  seek  to  give, 
and  will  give,  a  judgment  as  nearly  righteous  as 
may  be.  In  the  whole  history  of  arbitrations  but 
one  has  ever  been  suspected  of  corruption,  and,  by 
joint  agreement,  its  findings  were  reviewed. 
Slight  criticism  may  be  made  of  the  generality  of 
other  like  tribunals.  Today,  doubtless,  even  the 
English  will  agree  that  the  findings  of  the  Alabama 
Joint  High  Commission  were  just. 

Let  it  not  be  said  that  the  ideas  to  which  I  have 
sought  to  give  expression  are  too  advanced,  are  im- 
practical. It  is  only  by  ^'hitching  our  wagon  to  a 
star"  that  we  may  progress.  Let  us  not  forget 
that  there  is  nothing  blinder  and  stupider,  nothing 
less  practical,  than  the  so-called  practical  man; 
that  only  among  the  dreamers  of  dreams  of  human 
advancement  are  to  be  found  those  whom  the  flow 
of  events  demonstrates  to  have  had  the  clearness 
of  vision  of  the  truly  practical  man. 


SOME  SUPPOSED  JUST  CAUSES  OF  WAR  113 

CHAPTER  X 

SOME  SUPPOSED  JUST  CAUSES  OF  WAR* 

Diplomatists  and  statesmen — we  must  mention 
both,  for  all  diplomatists  are  not  statesmen,  and 
all  statesmen  are  not  diplomatists — agree  often 
and  so  express  themselves  in  treaties,  that  for 
honor  and  vital  interests  nations  may  wage  what 
is  dignified  by  the  title  of  "solemn  war,"  and  that 
they  must  be  permitted  so  to  do  at  their  good  pleas- 
ure, even  though  the  doors  of  the  Hague  tribunal 
of  arbitration  swing  freely  upon  their  hinges,  and 
possible  judges  wait  the  sound  of  the  footsteps  of 
the  representatives  of  litigant  states.  Honor  and 
vital  interests — how  sonorous  these  words  sound ! 
Resolve  them  into  their  elements — passion, 
avarice,  commercial  and  territorial  aggrandize- 
ment— and  the  result  is  verbiage  so  crude  as  to 
grate  upon  modern  susceptibilities.  Let  us  not 
continue  to  use  grand  words  to  conceal  ignoble 
thoughts ! 

But  it  is  only  those  aggregations  of  human  units 
that  we  call  nations  that  may,  without  crime  and 
without  judicial  punishment,  slay,  burn,  rob,  and 
destroy.    Why  this  logically  should  be  the  case  we 


*  Address  at  the  New  England  Peace  Congress,  Hartford, 
Conn.,  May  9,  1910, 


114  democracy's  inteenational  law    . 

are  at  a  loss  to  understand.  Why  the  inherent 
rights  of  the  individual  to  determine  such  ques- 
tions as  concern  his  honor  or  vital  interests  should 
be  mercilessly  abridged,  and  why  cities  and  towns 
(and  not  nations)  should  be  deprived  of  the  full 
and  free  exercise  of  their  most  violent  passions, 
one  is  unable  to  comprehend.  Should  not  the  power 
of  both  city  and  nation,  or  else  of  neither,  be  sub- 
mitted to  the  ruling  care  of  the  judiciary?  Is 
there  anything  peculiar  about  the  situation  of  a 
city  or  of  a  State  which  should  deprive  it  of  the 
free  exercise  of  its  faculties  ?  Let  us  examine  into 
the  question  by  considering  first  a  couple  of  sup- 
posititious cases,  either  of  w^hich  may  find  its  full 
parallel  in  history,  and  offering  a  justification  for 
war  fully  as  well  founded  as  the  justification  fur- 
nished for  many  wars  of  the  past  between  nations. 

New  York,  as  we  all  know,  is  a  great  collection 
of  hmnan  beings,  greater  than  was  boasted  by  all 
the  cities  of  Greece,  of  whose  wars  we  read  with 
sanguinary  pleasure, — greater  than  Eome  pos- 
sessed after  she  had  subdued  all  Italy.  New  York- 
ers are  overflowing  her  civic  boundaries  into  New 
Jersey,  even  as  Japanese  are  overflowing  from 
Japan  into  Korea  or  Manchuria.  Let  us  listen  to 
the  musings  of  a  future  chieftain  of  Tammany 
Hall,  whose  domain  is  coextensive  with  that  of 
Greater  New  York.    He  says : 


SOME   SUPPOSED  JUST   CAUSES  OF  WAR  115 

New  York  is  imperia,  and  every  New  Yorker  feel^  the  glow 
of  i^atriotic  pride  when  he  gazes  on  the  vast  fleets  coming  from 
all  quarters  of  the  globe  to  share  in  the  profits  of  her  commerce. 
The  bosom  of  every  home-loving  New  Yorker  must  swell  with 
pride  as  he  contemplates  her  magnificent  structures,  at  once  index 
and  emblem  of  her  greatness.  Here  liberty  reigns,  here  the  son 
of  the  poorest  immigrant,  as  illustrated  in  my  own  person,  may 
become  ruler.  But  with  all  this,  New  York  is  in  her  swaddling 
clothes.  Imaginary  lines  bound  her  on  the  north,  while  to  the 
west  the  jurisdiction  of  the  city  is  limited  by  the  North  Eiver, 
beyond  which  a  New  Yorker  may  not  go  without  being  in  danger 
of  losing  his  political  allegiance  and  being  absorbed  by  an  alien 
community.  Every  patriotic  instinct  demands  that  New  York 
should  extend  her  boundaries  so  that  her  sons  may  have  room  in 
which  to  live  and  contribute  to  the  glory  of  their  native  city. 

And  withal  a  subconscious  voice  whispers,  ''Let 
this  come  to  pass,  and  greater  will  be  Tammany 
and  more  luscious  the  spoils  thereof." 

What  more  effective  appeal  to  true  patriotism 
could  be  made !  And  when  you  add  the  promise  to 
the  valiant  sons  of  the  Bowery  or  of  Harlem  that 
the  rich  lands  of  the  Jerseys  shall  be  theirs,  that 
the  superabundance  of  their  neighbors  in  cows  and 
corn  and  strawberries  shall  be  their  abundance, 
can  you  not  imagine  with  what  fervor  the  embat- 
tled warriors  of  Yorkville  and  the  Bronx,  the 
Bowery  and  the  Battery,  would  fall  upon  their 
weaker  neighbors  across  the  North  River  and 
openly  put  to  the  sword  each  offending  owner  of 
a  herd  of  cows  or  of  a  promising  strawberry 
patch  ?  And  ihe  cause  of  war,  that  is,  the  ostensi- 
ble cause  of  war  I    No  matter.    Perhaps  a  bibulous 


116  democracy's  international  law 

New  Yorker,  suffering  from  the  Sunday  drought 
of  his  city  and  seeking  consolation  in  Hoboken,  has 
been  arrested  somewhat  roughly  and  given  a  dis- 
agreeable sample  of  Jersey  justice,  against  which 
every  city-loving  citizen  of  Manhattan  raises  pro- 
test and  cries  for  war.  Anything  will  do  as  long 
as  the  desire  exists  for  dominion  over  rich  lands 
across  the  river,  as  long,  in  other  words,  as  the 
"vital  interests"  of  New  York's  rulers — money  al- 
ways being  vital — demand  an  extension  of  New 
York's  power.  And  now  that  we  have  the  honor 
of  New  York  assailed  in  the  person  of  her  intoxi- 
cated citizen,  vital  interests  compel  war. 

Yet  we  live  in  such  an  unmanly,  effete,  and 
degenerate  age  and  country  that  should  the  mighty 
cohorts  of  Tammany,  desisting  from  the  milder 
pleasures  of  Coney  Island,  advance  upon  New 
Jersey,  the  United  States,  whose  peace  had  been 
disturbed,  would  s])eedily  put  them  to  rout. 

But  withal,  reason  would  rest  with  the  Tammany 
chieftain.  His  orators  could,  with  propriety,  con- 
tend that  the  entity  he  represents  was  old  enough, 
big  enough,  rich  enough,  to  be  allowed  to  fight 
without  foreign  interference.  With  patriotic 
pride  could  they  point  to  examples  of  cities  less 
impo]-tant  whose  struggles,  based  upon  identical 
principles,  occupy  many  interesting  and  lauda- 
tory pages  of  history.    With  swelling  pride  could 


SOME   SUPPOSED  JUST   CAUSES   OF  WAE  117 

tliey  repel  the  idea  that  Californians  and  Ken- 
tuckians  and  Vermonters,  having  no  knowledge  of, 
or  sympathy  with,  their  patriotic  aspirations, 
should  band  themselves  together  to  subdue  the 
manly  New  Yorker,  struggling  only  to  advance  his 
peculiar  civilization. 

Their  logic,  from  the  standpoint  of  the  English- 
man subduing  the  Boers,  the  Japanese  seizing 
Manchuria,  yes,  the  American  pursuing  the 
Filipino  or  forcing  him  to  take  false  oaths  of 
allegiance,  would  be  irresistible.  But  logic  does 
not  always  rule,  and  the  New  Yorker  would  find 
that,  save  by  the  permission  of  the  Jerseyites,  and 
with  the  leave  of  yokel  representatives  gathered 
in  Congress  from  all  parts  of  the  Union,  and  the 
consent  of  the  New  York  legislature,  the  rule  of 
Tammany  must  remain  confined  to  such  parts  of 
the  State  of  New  York  as  the  State  shall  permit. 

But  let  us  approach  the  problem  from  another 
point  of  view.  Great  as  is  New  York,  let  us 
imagine  that  Boston  rivals  her  in  the  commerce 
of  the  world ;  that  every  favoring  breeze  brings  to 
Boston  the  largess  of  the  whole  globe ;  that,  despite 
all  the  Gotham  efforts,  Boston's  growing  com- 
mercial advantages  directly  affect  New  York, 
whose  rent  rolls  steadily  diminish.  Imagine  there 
arises  a  newspaper  Cato,  whose  morning  and 
evening  editions  print  at  their  top,  in  blood-red 


118  DEISrOCRACY 'S  INTERXATTOXAL,  LAV7 

letters,  Delenda  est  Boston.  The  public  mind 
becomes  attuned  to  tlie  ciy.  In  an  unlucky 
moment  a  Bostonian  in  New  York,  whose  un- 
happy pronunciation  of  the  letter  ''A"  reveals  his 
origin,  becomes  involved  in  difficulties  necessitat- 
ing a  \^sit  to  the  Tombs.  Boston  peremptorily 
demands  his  release.  New  York  scornfully  re- 
fuses, and  New  Yorkers  are  insulted  by  Boston's 
wrathful  rejoinder.  Here  again  honor  and  vital 
interests  demand  blood,  and  under  the  old  logical 
rule  the  solemn  arbitrament  of  war  must  deter- 
mine the  issue.  Alas !  once  more  the  men  of  other 
places,  heedless  of  the  honor  of  the  two  cities  and 
blind  to  all  interests  save  their  o^vn,  step  forward 
an«d  forbid  resort  to  any  other  instrumentality 
than  the  artificial  one  of  courts,  if  a  legal  injury 
may  be  said  to  exist.  Alas,  again,  the  insult  to 
the  honor  of  the  two  cities  does  not  constitute  an 
injury  of  sufficient  gravity  to  be  considered  by  any 
national  court. 

But  if  these  suggestions  seem  the  wild  vagaries 
of  imagination,  let  us  take  more  concrete  examples. 
The  drainage  of  the  city  of  Chicago  pours  itself 
out  into  the  Illinois  Eiver,  and  diagonally  across 
the  State  the  current  flows  to  join  the  purer  waters 
of  the  Mississippi.  Soon  the  flood  reaches  St. 
Louis,  and  endangers  the  integrity  of  its  vrater 
supply.    Shall  not  every  stalwart  Missourian  who 


SOME  SUPPOSED  JUST   CAUSES  OF   WAR  119 

feels  his  bosom  beat  mtli  love  for  his  State  fly  to 
arms,  cross  the  Mississippi,  and  relentlessly  fall 
upon  the  luckless  citizens  of  the  State  of  Illinois? 
Shall  the  health,  the  comfort,  the  prosperity  of 
Missouri  be  ruthlessly  attacked  by  a  neighboring 
State  and  the  injury  not  be  wiped  out  in  blood? 
Must  the  Missourian  stand  supinely  by  while  the 
population  of  his  State  becomes  decimated  by 
disease  set  at  work  by  the  carelessness  of  people 
alien  to  his  State  government,  and  whose  actions 
have  conclusively  shown  their  lack  of  courtesy  and 
civilization  ?  Are  not  such  people  worse  even  than 
peoples  whose  skins  are  black  or  perhaps  yellow? 
Is  it  not  the  high  mission  of  St.  Louis  to  carry 
civilization  even  to  the  banks  of  the  Sangamon? 
Is  it  not  part  of  the  Missourian 's  share  of  the 
burden  of  humanity  to  teach  the  true  gospel  of  the 
golden  rule  to  the  backward  denizens  of  Pike, 
Cook,  and  Jo  Daviess  counties  ?  Must  not  these 
questions  be  answered  in  the  affirmative  but  for 
the  fact  that  Missouri  and  Illinois  recognize  as  a 
common  superior  an  artificial  entity  called  the 
United  States,  which  forbids  such  war  and  rele- 
gates both  parties  to  peaceful  courts,  where,  with 
the  assistance  of  bacteriologists,  lawyers,  and 
judges,  the  issues  are  fought  out  without  the 
pomp  and  circumstance  of  war '?  Are  we  not  indeed 
living  in  a  dull,  uneventful  age,  and  inflicting  upon 


120  demockacy's  ixteenational  law 

the  young  men  of  both  States  the  canker  of  peace  1 
But  once  again  the  logic  of  war  is  denied  and  the 
manly  virtues  remain  undeveloped. 

Yet  another  illustration.  The  State  of  Kansas 
contends  that  the  waters  descending  from  the 
mountains  of  Colorado  should  be  allowed  by 
Colorado's  citizens  to  pursue  their  way,  unvexed 
and  undiminished,  to  render  more  fertile  the 
plains  of  the  Sunflower  State.  The  vital  interests 
of  the  States  collide.  Shall  the  interest  of  bleed- 
ing Kansas  be  allowed  to  suffer  because  of  the  self- 
ish and  grasping  policy  of  the  men  of  Colorado? 
Invoking  the  soul  of  John  Brown  as  it  goes  march- 
ing on,  let  the  Kansans  march  upon  the  sons  of 
the  Centennial  State  and  slaughter  them  until  they 
learn  how  to  live  and  let  live.  Alas!  once  more, 
war,  which,  like  poverty,  is  justified  because  we 
have  always  had  it  and  the  contrary  is  against 
human  nature,  is  suppressed;  and  the  great  sov- 
ereign States  of  Kansas  and  Colorado  are  forced 
to  bow  to  the  dictations  of  nine  men  in  black  robes, 
only  one  of  whom,  and  he  by  chance,  happens  to  be 
a  citizen  of  either  State. 

I  have  given  you  two  imaginary  and  two  actual 
illustrations  of  circumstances  which,  by  all  the 
books,  would  justify  war.  In  two  cases  honor 
dictates,  and  in  all  four  vital  interests  demand  it. 
The  only  restraining  thing  is  that  the  contending 


SOME   SUPPOSED  JUST   CAUSES  OF   WAK  121 

parties  are,  in  each  case,  subject  to  the  control  of 
a  judicial  body.  In  vain  could  any  of  the  States 
named  declare  their  right  to  determine  for  them- 
selves what  was  needed  to  satisfy  their  own  honor 
or  to  maintain  their  own  true  interests.  Always 
their  neighbors  insist  upon  their  superior  right 
to  preserve  the  peace  of  the  Continent. 

But  so  little  civilized  are  we  international^  that 
books  are  written  about  the  niles  of  war ;  that  the 
right  of  blockade  is  recognized  between  nations; 
that,  because  of  brawls  with  which  no  outside 
party  has  any  concern,  the  commerce  of  neutrals 
is  interfered  with,  the  property  of  their  citizens 
often  exposed  to  the  ravages  of  war  on  land,  while 
neutral  governments,  unlike  the  onlookers  at  a 
street  fight,  who  content  themselves  with  making 
a  ring  about  the  contestants,  accept  limitations 
upon  their  own  conduct  made  by  the  fighters  them- 
selves. Can  we  not  learn  that  there  is  no  more 
dignity,  no  more  glory,  about  a  national  dispute, 
about  a  national  conflict,  than  there  is  in  a  duel  be- 
tween two  neighbors  over  the  proper  placing  of  a 
line  fence? 

And  if  the  good  of  the  community  demands 
that  the  quarrels  of  neighbors  shall  be  determined 
by  a  legal  court,  if  the  rivalries  of  cities  and 
States  must  find  in  this  country  their  settlement 
in  dispassionate  tribunals,  why  should  there  not 


122  democracy's  international  law 

be,  judicially  at  least,  tlie  United  States  of  tlie 
world,  with  a  tribunal  capable  of  passing  upon  all 
international  questions  without  restrictions? 

We  may  here  pride  ourselves  on  believing  that 
we  are  going  with  the  swing  of  international  feel- 
ing; that  with  the  spread  of  intelligence,  with  a 
greater  recognition  of  the  equality  of  human  be- 
ings, which  in  the  last  analysis  denies  the  right  of 
one  man  to  require  another  to  sacrifice  his  life  and 
property  without  just  cause,  duly  ascertained  by 
cold  and  competent  tribunals,  there  must  come  a 
time  when  war  will  be  looked  upon  as  a  crime. 
The  stars  in  their  courses  fight  for  us. 

Let  it  not  be  said  that  I  am  inappreciative  of  the 
dignity  of  war  and  of  the  importance  of  the  causes 
leading  up  to  it.  War  has  no  dignity.  It  offers  a 
tragedy  and  a  farce.  With  the  tragic  element  we 
are  all  too  familiar.  With  the  farce  of  it  all  we 
are  less  familiar,  for  it  is  one  of  the  obvious 
things — so  ob^dous  and  so  accustomed  that,  like 
the  movement  of  the  earth  around  the  sun,  eons 
of  time  pass  by  without  its  realization.  AVhat  can 
be  more  farcical  than  that  human  beings  should  be 
dressed  up  in  gold  lace  and  waving  plumes  to  go 
forth  to  slay  other  human  beings  in  waving  plumes 
and  gold  lace?  Why  should  bearskin  shakos  be 
used  to  add  ferocity  to  their  ensemble?  Why 
should  the  common  people,  whose  interest  in  the 


SOME   SUPPOSED   JUST   CAUSES  OF  WAK  123 

matter  is  nil,  make  themselves  food  for  powder, 
all  for  the  benefit  of  the  few  whose  tinsel  decora- 
tions blind  their  own  eyes  and  those  of  the  be- 
holders! And  why  should  parents  who  love  their 
offspring  rush  into  opportunities  of  bequeathing 
to  them  legacies  of  national  poverty  and  debt  as 
the  result  of  a  display  of  passion  on  the  part  of  the 
fathers?  And  when  all  this  is  the  work  of  sen- 
tient human  beings,  may  Ave  not  wonder  over 
their  effrontery  in  speaking  of  themselves  as  rea- 
soning creatures?  Are  nations  so  rushing  into 
conflict  wiser  than  the  mad  bull  in  the  arena  that 
with  lowered  head  dashes  upon  the  sword  of  the 
matador?  May  we  not  conceive  of  a  real 
philosopher  looking  down  with  wondering  and 
puzzled  contempt  and  amazement  at  our  bloody 
antics  over  baubles  ? 

For  as  yet  we  are  but  children  and  have  the 
ways  of  children.  Between  the  childish  disputes, 
^'It  is,"  'at  isn't,"  or  "I  want  to  swing,"  "No,  I 
won't  let  you  swing,"  and  the  average  differences 
between  nations  leading  to  war,  there  is  in  essence 
no  distinction, — nothing  save  the  age  and  number 
of  the  disputants  and  the  consequent  variance  in 
the  objects  which  interest  them.  Relatively,  the 
contest  is  unchanged,  and  equally  it  should  be  ad- 
justed without  killing  and  without  the  slow  sap- 
ping away  of  life  through  taxation. 


124  democracy's  inteenatioxal  law 

But  if  you  tell  me  that  such  doctrines  as  I  have 
tried  to  set  out  are  opposed  to  patriotism,  let  me 
say  to  you  that  patriotism  is  not  a  fixed  but  a 
growing  term.  When  the  first  Englishmen  planted 
themselves  on  the  shores  of  Massachusetts  Bay, 
their  patriotism  was  bounded  by  the  fringes  of 
woods  concealing  Indian  enemies.  Later  it  meant 
a  special  sense  of  duty  to  those  within  the  widen- 
ing boundaries  of  the  province.  Yet  a  few  years, 
and  with  the  birth  of  a  new  nation,  all  who  lived 
within  the  bounds  of  the  thirteen  original  States 
were  recognized  as  their  brothers.  Then,  by 
leaps  and  bounds,  it  came  to  pass  that  the  teem- 
ing millions  of  human  beings  from  the  Atlantic  ta 
the  Pacific  represented  the  solidarity  of  the  coun- 
try, and  all  were  recognized  as  brothers  under  a 
common  flag,  and  betw^een  such  brothers  war  was 
a  crime,  and  all  troubles  to  be  determined  in  a 
peaceful  manner. 

But  one  step  is  left.  We  have  to  recognize  the 
brotherhood  of  the  human  race  and  the  infinite 
crime  of  bloody  contests  between  members  of  a 
common  family.  A^Tien  the  day  of  such  recognition 
arrives  we  shall  love  our  inunediate  neighbors  no 
less,  and  for  them  reserve  the  special  offices  that 
our  finite  strength  limits  us  to  giving  to  the  rela- 
tively few,  while  the  narrower  features  of  the 
patriotism  of  today  will  be  swallowed  up  in  a 
broad  consideration  for  the  rights  of  humanity, 
and  all  men  will  be  brothers. 


ESSENTIALS  OF  PEACE  AND  WAR  125 

CHAPTER  XI 

ESSENTIALS  OF  PEACE  AND  WAR 

"From  battle,  murder,  and  sudden  death,  Good 
Lord  deliver  us."  Thus  saith  the  Litany.  We 
forget  that  without  our  active  assistance  in  the 
correction  of  evils  which  lead  to  battle,  the  pious 
ejaculation  of  the  Litany  becomes  no  more  effect- 
ive than  the  turning  prayer-wheels  of  Thibet. 

But  we  have  done  more  than  to  pray  nervelessly 
for  peace.  We  have  organized  society  upon 
society  whose  avowed  purpose  has  been  to  pro- 
mote the  cause  of  peace,  and  with  them  all  we  have 
paid  little  attention  to  the  essentials  of  the  thing 
we  sought  for.  Thus  it  has  been  that  all  of  our 
work,  either  in  private  association  or  represented 
by  formal  resolutions  of  the  Massachusetts  State 
Legislature,  of  Bar  Associations,  of  the  Congress 
of  the  United  States,  has  amounted  in  practical 
result  to  little  beyond  the  returns  from  our 
thoughtless  repetitions  of  the  Litany. 

No  one  has  offered  dissent  to  any  of  our  resolu- 
tions or  protested  against  the  purpose  of  our 
societies.  Even  the  most  pronounced  militarist 
will  aver  a  love  for  peace  and  will  declare  that  he 
is  in  favor  of  arming  to  the  teeth  to  maintain  peace 
and  prevent  war.    In  fact  none  but  a  degenerate 


126  democracy's  international  law 

would  glory  in  gas-eaten  linman  bodies,  in  torn 
limbs,  in  drowning  men  and  women,  and  in  all  the 
other  varied  forms  of  injury  to  persons  and  de- 
struction of  life  war  offers  us. 

With  all  our  praise  of  peace  and  denunciation  of 
war,  we  find  Europe  in  ruins.  Each  international 
pross-road  offers  an  opportunity  for  conflict. 
Meanwhile  America  punishes  itself  by  expending 
93  per  cent,  of  its  annual  outgo  for  past  and  pros- 
pective destruction.  We  go  on  believing  that  a 
private  killing  is  murder,  but  the  taking  of  human 
life  on  the  order  of  a  group  of  men  called  a  Con- 
gress, a  Parliament,  or  a  Cabinet  becomes  sanc- 
tified under  the  name  of  Patriotism.  Despite  the 
frills  with  which  we  have  decorated  international 
action,  analysis  shows  that  we  have  taken  but 
trivial  steps  to  delay  physical  fighting  over  things 
which  nations  ordinarily  regard  as  material. 

Analogies  are  unsafe,  and  yet  perhaps  we  may 
imagine  one  not  without  truth.  Suppose  that  one 
hundred  years  ago  legislatures  and  associations 
had  commenced  to  tell  the  world  that  health  was 
beautiful  and  disease  painful  and  disagreeable. 
Suppose  men  had  marshalled  themselves  under 
banners  proclaiming  to  the  breeze  "mens  sana  in 
corpore  scmo."  Suppose  that  our  ancestors  and 
ourselves  after  them  had  all  united  in  declaring 
tliat  health  kept  for  a  longer  time  the  bloom  of 


ESSENTIALS  OF  PEACE  AISID  WAR  127 

youth  upon  the  cheek;  increased  individual  com- 
fort ;  led  to  a  higher  morality ;  lengthened  life — 
would  not  every  saloon-keeper  have  agreed  and 
every  opium  dealer  have  wished  the  apparent 
movement  Godspeed  even  as  now  militarists  cry 
aloud  furiously  for  peace"?  Suppose  that  during 
all  the  time  this  was  taking  place  our  ancestors 
and  ourselves  resolutely  refused  to  examine  into 
the  causes  of  disease;  took  no  steps  to  clean  up 
slums ;  did  not  drain  swamps  or  stamp  out  the 
mosquito;  failed  to  fight  darkness  with  light  or 
point  out  the  dangers  of  the  use  of  opium  or 
alcohol, — would  human  life  have  been  lengthened 
or  made  more  comfortable  by  virtue  of  al]  these 
fine  resolutions  1  Has  there  not  been  a  close 
analogy  l^etween  the  conduct  of  our  leaders  of 
thought  in  this  country  with  relation  to  peace  and 
the  imaginary  conduct  which  might  have  hexm  in- 
dulged in  during  a  like  period  by  the  advocates  of 
health?  Solemn  resolutions  in  favor  of  inter- 
national order  parallel  solemn  resolutions  in  favor 
of  health  and  material  wellbeing.  Eefusal  to  ex- 
amine into  the  causes  of  international  disorder 
parallels  refusal  to  seek  out  the  causes  of  disease. 
The  swamps,  mosquitoes,  and  vice  our  scientists 
have  sought  to  limit  and  destroy.  Their  like  inter- 
nationally remain,  so  far  as  we  are  concerned,  un- 
known, unrecognized,  or  at  least  untouched. 


128  democracy's  international  law 

By  the  universal  line  of  conduct  in  practice  as- 
sumed, we  and  our  ancestors  have  appeared  to  re- 
gard peace  as  something  to  be  attained  and  assured 
by  a  kind  of  fiat.  We  have  put  it  on  the  same  plane 
with  Direct  Legislation,  or  Woman's  Suffrage,  or 
Proportional  Representation  or  other  schemes  of 
administrative  reform,  overlooking  the  fact  that  it 
was  vastly  more  subtle ;  that  it  was  a  product  and 
not  self -existent ;  that  it  could  only  be  created  and 
preserved  by  circumstances  favorable  to  it.  We 
have  thought  that  we  could  sow  broadcast  the 
seeds  of  war  and  after  the  plants  appeared,  suc- 
cessfully graft  upon  them  the  olive  branch  of 
peace.  As  well  might  we  hope  to  graft  the  fig  upon 
the  thistle. 

Sometimes  in  specific  instances  we  have  said 
that  lust  for  territory  or  desire  for  access  to  the 
sea  were  causes  for  war,  and  unthinkingly  have 
looked  on  when  nations  quarreled  over  the  posses- 
sion of  natural  resources.  We  have  never  par- 
ticularly analyzed  these  causes  to  find  whether  or 
not,  granting  present  national  and  international 
conditions,  there  might  have  been  some  entirely 
understandable  excuse  for  them.  We  have  not  con- 
cemed  ourselves  with  their  removal. 

If  we  had  stopped  to  consider  conditions  in  our 
own  country  as  offering  an  international  parallel 
or  suggesting  our  duty  toward  our  neighbor  in 


ESSENTIALS  OF  PEACE  AND  WAR  129 

tlie  cause  of  peace,  we  might  have  pointed  out  an 
antidote  for  the  bane  of  many  wars.  Does  Ehode 
Island  particularly  concern  herself  over  the  fact 
that  her  territorial  limits  are  restricted?  Is  there 
a  citizen  of  the  State  who  would  be  willing  to  lay 
down  his  life  or  ask  his  neighbors  to  lay  down 
their  lives  to  add  one  or  one  thousand  miles  to  her 
territorial  jurisdiction?  Is  there  a  citizen  of  Ver- 
mont who  is  distressed  over  the  fact  that  Vermont 
has  no  immediate  access  within  her  o^vn  jurisdic- 
tion to  the  Atlantic  Ocean?  Would  any  denizen 
of  New  Hampshire  be  willing  to  fight,  supposing  it 
otherwise  feasible,  against  citizens  of  Pennsyl- 
vania because  of  a  desire  to  obtain  for  his  State 
direct  control  over  beds  of  coal  and  iron.  And  yet 
these  several  suggestions  involve  extension  of  ter- 
ritorial limits,  access  to  the  sea,  possession  of 
natural  resources,  which  are  made  the  frequent 
cause  and  excuse  for  international  conflict.  Any- 
one of  them  would  be  unthinkable  within  our 
nation,  and,  were  justice  to  prevail  between 
nations,  would  be  equally  unthinkable  inter- 
nationally. 

This  American  peace  is  not  due  to  the  fact  that 
we  have  a  common  executive,  a  Congress,  and  a 
Supreme  Court,  useful  as  all  of  these  instru- 
mentalities may  be.  It  exists  because  any  citizen 
of  the  United  States  equally  with  any  other  citi- 


130  democracy's  interxatio^^tal  law 

zen  lias  a  right  in  perfect  freedom  to  pass  State 
borders  with  all  his  familj^  and  property;  to  im- 
port and  export  from  place  to  place  within  the  lim- 
its of  the  United  States  any  sort  of  property  he 
pleases  without  hindrance  from  any  State  author- 
ity; to  gain  access  to  and  from  the  seas  without 
any  local  interference  w^hatsoever.* 

It  is  quite  beside  the  mark  to  say  that 
national  or  international  executives,  councils,  or 
assemblies  with  ample  paraphernalia  of  courts, 
will  insure  peace.  Nothing  will  attain  this  end 
save  justice  and  equality,  not  merely  as  between 
nations  but  also  as  between  the  individual  mem- 
bers of  nations  in  their  intercourse  w^ith  those  who 
are  citizens  or  subjects  of  another  jurisdiction. 

We  have  the  proof  of  this  in  our  own  experience. 
With  as  nearly  perfect  a  system  as  exists  in  any 
country  of  executive,  legislative  and  judicial  au- 
thorities, when  the  essential  nation-wide  injustice 
of  slavery  existed,  we  forget  all  else  and  there  oc- 
curred the  war  between  the  States.  Likewise  we 
may  expect  wars  to  continue  despite  all  leagues, 
associations,  Hague  Courts,  international  police, 
or  whatever  agency  may  be  imagined,  unless  we 
study  resolutely  the  secrets  of  international  justice 


*  It  is  not  necessary  to  discuss  such  minor  limitations  of  inter- 
course as  affect  health  or  prevent  internal  disorder. 


ESSENTIALS  OF  PEACE  AND  WAE  131 

and  cure  injustice.     This  we  have  scarcely  com- 
menced to  dOv 

If  we  would  maintain  peace,  therefore,  we  must 
commence  by  following  the  fashion  of  the  health 
society  which  would  very  speedily  have  abandoned 
the  denunciation  of  yellow  fever,  tuberculosis,  and 
smallpox  for  the  isolation  of  the  germs. 

We  have  so  far  remained  in  such  complete  ig-nor- 
ance  of  the  subject  that  we  have  not  even  discov- 
ered where  peace  ends  and  war  begins. 

We  treat  war  much,  in  International  Law,  as  if 
it  were  a  bolt  out  of  the  blue ;  as  though  it  were 
something  not  within  the  control  of  men,  but  which 
comes  upon  nations  as  a  mysterious  epidemic 
sweeping  all  before  it.  We  look  at  its  ripened 
fruit  of  physical  combat  and  we  forget  that  this 
product  does  not  exist  save  f^.s  the  result  of  a  long 
course  of  development.  We  carefully  sow  its  seeds 
in  injustices  toward  and  special  advantages 
taken  of  our  neighbors.  We  fertilize  and  w^ater 
with  our  suspicions,  jealousies,  avarices  and  desire 
to  submit  our  neighbors  to  our  power,  and  then, 
allowing  the  plant  to  develop,  we  suddenly  dis- 
cover we  have  the  flower  and  fruit.  No  one  would 
so  treat  the  upas  tree,  if  it  possessed  the  qualities 
travelers  have  given  it,  but  unintelligently  we  cul- 
tivate something  infinitely  more  deadly.    We  bet- 


132  democracy's  international  law 

ter  the  ancient  saying  "In  time  of  peace  prepare 
for  war,"  for  in  this  period  we  energetically  gen- 
erate war  itself. 

Let  us  illustrate  by  a  single  example  the  point 
in  mind.  We  say  conunonly  and  roughly  that  war 
opened  between  Grermany  and  France  in  August, 
1914,  this  because  the  official  killings  date  from 
such  period.  Without  undertaking  to  trace  the 
struggle  to  its  more  obscure  beginnings,  with 
greater  show  of  correctness,  it  could  be  said  that 
the  war  began  in  1870  witli  the  taking  of  Alsace- 
Lorraine  by  Germany  and  that  the  development  of 
the  plant  to  its  greatest  perfection  had  covered  a 
period  of  44  years  before  the  perfect  fruit — ^physi- 
cal war — was  gathered. 

While  the  taking  of  Alsace-Lorraine  was  in  it- 
self a  political  crime  involving  also  undoubtedly 
much  personal  discomfort  or  injury,  if  individual 
suffering  and  political  control  alone  had  been  in- 
volved the  consequences  might  not  have  been 
serious. 

The  provinces  taken  contained  much  mineral 
wealth,  useful  theretofore  to  France,  but  there- 
after devoted  to  the  special  benefit  of  (xermany. 
The  latter  pursued  with  narrow  selfishness  the 
plan  common  to  nations  of  treating  the  wealth  un- 
der tlioir  immediate  political  control  as  an  instru- 


ESSENTIALS  OF  PEACE  AND  WAK  133 

ment  to  be  employed  to  their  exclusive  benefit  or 
rather  in  a  larger  degree  to  the  benefit  of  a  small 
circle  of  their  more  privileged  classes.  Taxes  and 
tariffs  were  adjusted  to  this  end.  This  wealth 
which,  if  nature  teaches  us  anything  we  may  be- 
lieve as  intended  for  the  benefit  of  all  humanity, 
was  thus  appropriated  by  a  few  and  particularly 
employed  for  their  advantage  within  the  national 
limits. 

This  course,  so  natural  as  nations  are  now  edu- 
cated, involved  tremendous  and  disastrous  conse- 
quences not  alone  to  Germany  but  as  we  have  seen 
to  the  entire  world.  Knowledge  that  it  would  be 
taken  precluded  friendship  between  France  and 
Germany.  From  that  time  on  Germany  with  guilty 
conscience,  feeling  the  necessity  of  rendering  her- 
self capable  more  completely  of  overthrowing  the 
country  she  had  immediately  wronged,  prepared 
for  the  certain  physical  conflict  and  France  fol- 
lowed in  her  train.  Each  advancement  on  the  part 
of  one  country  in  the  art  of  civilized  slaughter  was 
met  by  further  progress  on  the  part  of  the  other. 
At  every  point,  military,  industrial,  political,  each 
nation,  without  tracing  its  steps  to  their  ultimate 
conclusion,  injurious  to  itself,  sought  to  hinder  and 
prevent  the  normal  development  and  expansion  of 
the  other.  German  industrial  and  political  rela- 
tions with  Austria  became  closer.    France  created 


134  democeacy's  intern ational  law 

more  intimate  associations  with  Russia  and  Eng- 
land. If  France  desired  preponderating  influence 
in  Morocco,  a  German  man-of-war  offered  an  im- 
plied threat,  to  which  threat  France,  England  and 
other  countries  responded  essentially  in  kind,  if 
their  conduct  were  less  blunt. 

If  Germany  desired  larger  industrial  and 
economic  development  in  Turkey  and  the  valleys 
of  Mesopotamia,  allies  of  France  stood  in  her  way. 
The  French  peasantry  were  ready  to  supply  their 
hard-f^aiTied  francs  to  the  development  of  militaiy 
power  in  Eussia,  and  Germany  answered  by  levies 
on  capital  to  meet  the  situation.  France  riposted 
with  a  three  years'  ser\'ice  law.  In  every  moral 
(or  shall  we  say  immoral!)  sense  were  they  not  at 
war  even  though  no  blow  was  struck? 

If,  therefore,  we  are  to  address  ourselves  to  the 
great  problems  of  war  and  peace,  can  we  do  so 
without  a  revision  of  our  definitions  of  these  two 
opposing  international  conditions! 

Imagine  that  during  all  these  years  the  artificial 
barriers  between  France  and  Germany  had  been 
non-existent;  that  Germany,  laying  aside  all 
chauvinistic  patriotism,  had  granted  France  free 
access  to  all  German  markets  and  materials,  and 
that  Germany  had  enjoyed  a  like  privilege  in 
France;  that  England  and  Germany  on  equal 
terms  with  every  other  nation  and  at  their  own 


ESSENTIALS  OF  PEACE  AND  WAR  135 

option  could  have  entered  or  refrained  from  enter- 
ing upon  trade  or  commercial  exploitation  in 
Morocco,  Mesopotamia,  and  elsewhere;  that  the 
various  countries  had  not  arrayed  their  manu- 
facturers and  merchants  against  those  of  every 
other  country  and  that  merchants  and  manu- 
facturers had  possessed  forethought  enough  not  to 
have  asked  governmental  aid,  would  we  not, 
despite  a  political  change  affecting  Alsace-Lor- 
raine, have  escaped  44  years  of  incipient  warfare 
and  an  industrial  and  political  warfare  to  extend 
into  a  future  far  beyond  our  ken?  Would  not  the 
United  States  have  been  saved  the  lives  of  100,000 
of  its  most  promising  young  men,  avoided  thirty 
billions  of  dollars  of  indebtedness  and  the  expendi- 
ture of  untold  billions  hereafter  for  excessive 
armies  and  navies'? 

If  the  giving  up  of  special  national  monopolies ; 
if  refraining  from  tariff  and  other  taxes  not  cap- 
able of  ethical  justification ;  if  the  abandonment  of 
selfish  advantages  for  the  nationals  of  individual 
nations ;  if  the  practice  of  justice  would  have 
meant,  as  in  the  long  run  it  would  not,  sacrifices 
by  individuals  among  the  several  nations,  had  it 
not  been  better  to  have  stood  such  sacrifices  than 
to  have  risked  the  civilization  of  the  world  on  the 
battle-field? 

We  have  given  heed  to  the  demands  of  many 


136  democracy's  international  law 

small  nations  for  independent  government.  We 
have  done  so  without  stopping  to  consider  whether 
or  not  their  creation  as  separate  entities  was  call- 
ing into  existence  new  trade  barriers ;  new  obsta- 
cles to  natural  growth;  multiplied  fonns  of 
national  selfishness,  and  therefore  offering  new 
causes  for  war. 

We  have  been  as  blind  as  the  medicine  men  of 
a  more  savage  age  who  sought  to  cure  disease  when 
it  had  broken  out  virulently  by  their  incantations 
and  their  dances,  but  who  were  ignorant  of  the  fact 
that  there  had  been  perhaps  long  antecedent  condi- 
tions of  ill  health,  which  they  had  passed  un- 
observed. They  saw  only  the  final  outcome,  and 
knew  nothing  and  never  sought  to  inquire  con- 
cerning the  obscure  origins  of  disease. 

Our  point  of  approach  must  now  be  very  differ- 
ent and  much  more  radical  than  has  been  repre- 
sented by  all  of  oui*  resolutions  in  favor  of  peace. 
It  must  address  itself  resolutely  and  persistently 
to  the  study  of  the  causes  of  disease  and  not  to 
declamation  against  its  existence  or  attempts  to 
prune  a  poisonous  tree. 

Chattel  slavery  was  not  abolished  by  regulating 
the  quarters  to  be  occupied  by  the  slaves  or  by  al- 
lowing a  slave  to  testify  in  court.  The  axe  had  to 
be  laid  as  it  were  to  the  root  of  the  institution. 
And  in  like  manner  our  thought  must  go  unflinch- 


ESSENTIALS  OF  PEACE  AND  WAR  137 

ingly  to  removing  tlie  causes  of  war  and  a  re- 
definition of  war  and  peace  on  the  lines  herein 
indicated  will  materially  assist  us  in  our  work. 

We  denounce  the  immoralities  of  war  and  feel 
ourselves  better  citizens  by  so  doing.  We  might 
as  well  denounce  boiling  water  for  scalding.  We 
do  not  denounce  the  various  immoralities  inter- 
nationally of  which  w^e  are  guilty  in  time  of  peace. 
These  when  practiced  for  sufficiently  long  time 
furnish  the  explosives  creating  what  we  call  war. 

War  like  business  depressions  moves  in  cycles. 
In  business  when  our  over-reaching  practices  have 
continued  long  enough  and  the  strain  touches  the 
breaking  point,  we  become  engulfed  in  a  panic  or 
depression.  Nothing  in  nature  compels  the 
cycloidal  movement  in  business  and  likewise  noth- 
ing in  nature  compels  a  w^ar  cycle.  The  origin  of 
each  is  found  in  defects  of  human  conduct,  the 
germs  of  which  are  perfectly  capable  of  being 
isolated  and  treated. 


138  democracy's  international  law 


CHAPTER  XII* 

SOME  TENDENCIES   PRESSING  TOWARD  JUSTICE 
AND  PEACE 

"The  object  of  International  Law,"  says  the 
pacifist,  ''is  to  insure  peace  as  the  highest  good." 
"War  is  inevitaWe, "  says  the  militarist,  "because 
with  its  foundations  deep  in  human  nature  it  may 
not  be  avoided. "  In  a  practical  way  both  positions 
involve  an  element  of  error,  at  least  at  the  present 
time.  Law  has  as  its  truly  beneficent  purpose  not 
peace  but  justice.  Peace  is  a  by-product  of  great 
value,  certainly,  but  the  fact  may  not  be  igTiored 
that  justice  has  ever  seemed  to  men  more  import- 
ant than  peace,  and  that  without  it  peace  can  have 
no  firm  foundation. 

Turning  to  the  attitude  of  the  militarist,  we  may 
question  if  there  be  an  iimnutable  quality  in  human 
nature  making  mankind  in  masses  either  peaceful 
or  warlike,  merciful  or  cruel.  We  may  doubt  if 
it  is  necessary  to  change  human  nature  to  destroy 
the  trade  of  the  warrior.  We  do  know  that 
one  of  the  fairly  fixed  qualities  of  human  nature  is 
its  ability  to  change  its  manifestations  according 


*  The  larger  portion  of  this  chapter  was  published  in  1911 
for  the  American  Association  for  International  Conciliation,  by 
whose  courtesy  it  is  reproduced  here. 


TENDENCIES  TOWARD  PEACE  AND  JUSTICE        139 

to  its  surroundings.  We  have  in  us  a  good  deal 
of  the  chameleon.  If  men  are  taught  from  youth 
up  that  war  of  itself  and  as  an  end  in  itself  is 
righteous  and  commendable,  they  will  be  milita- 
ristic, and  it  will  be  said  that  their  human  nature  is 
warlike.  If  the  fellows  of  the  same  man  are 
brought  up  in  pacific  surroundings  the  reverse 
will  be  observed.  To  secure  this  transformation 
does  not  require  the  processes  of  the  ages  chang- 
ing something  inherent  and  fundamental.  The  in- 
clination of  men  to  fight  can  be  materially  changed 
— increased  or  diminished — within  a  generation  or 
two.  We  may  believe  therefore  that  viewed  as  a 
practical  proposition,  the  basis  of  the  reasoning 
of  the  militarist  is  not  sound. 

If  we  discuss  war  as  an  end  in  itself,  are  there 
elements  tending  so  to  change  our  surroundings — 
our  relations  with  our  fellows — as  to  render  war 
less  excusable  or  desirable!  Despite  the  will  to 
power;  despite  our  exaggerated  and  overbearing- 
patriotism,  in  the  like  of  which  other  countries 
than  ourselves  are  also  running  riot  for  the  mo- 
ment, there  exist  influences  tending  in  this  direc- 
tion and  which  in  the  long  run  must  play  an  im- 
portant part  in  enlightening  what  goes  under  the 
name  of  International  Law,  and  so  alter  our  absurd 
and  bloody  practices.    These  will  make  us  at  the 


140  democracy's  international  law 

same  time  advocates  of  justice,  which  will  come 
with  its  handmaid — peace. 

At  the  entrance  to  the  bridge  leading  from  the 
little  German  town  of  Klein  Basle  over  the  Ehine 
to  the  Swiss  city  of  Basle,  there  is,  or  was,  until 
recently,  a  bronze  statue,  so  grotesquely  arranged 
that  upon  the  stroke  of  the  hour,  it  made  a  con- 
temptuous grimace  toward  the  larger  place,  thus 
expressing  the  distrust  and  hostility  felt  by  the 
inhabitants  of  Klein  Basle  toward  those  of  Basle. 

The  illustration  is  typical  of  the  feeling  in  the 
beginning  of  the  people  of  different  neighborhoods 
toward  each  other.  Those  separated  by  a  river 
were  enemies.  The  people  beyond  the  mountains 
were  debased  and  perverted  characters.  The  vil- 
lagers across  the  lake  had  no  saving  virtues. 
Those  over  the  desert  or  the  other  side  of  arms  of 
the  sea  were  scarcely  of  the  same  race.  If  one 
traveled  a  few  miles  he  was  among  pagans  and 
lieathen.  If  he  journeyed  among  men  of  a  differ- 
ent color  he  became  a  foreign  de\dl.  If  men  were 
powerful  enough,  they  enslaved  first  those  of  their 
own  race  but  of  another  neighborhood,  and  Avith 
rising  civilization  those  who  were  merely  of  a 
different  color.  In  either  instance,  they  degraded 
their  fellows  and  denied  to  them  human  or  divine 
attributes. 


TENDENCIES  TOWARD  PEACE  AND  JUSTICE        141 

But  despite  all  our  narrowness  and  littleness, 
there  came  to  grow  a  sense  of  truth,  opposing  all 
our  prejudices  which  themselves  arose  out  of  our 
predilection  for  the  things  to  which  we  were  accus- 
tomed. We  appreciated,  dimly  and  imperfectly  at 
first,  then  more  clearly,  that  after  all,  in  the  mea- 
suring of  human  qualities,  notwithstanding  our 
natural  preferences  for  our  own,  the  character- 
istics which  distinguished  our  neighborhood  or 
nation  or  people  might  be  balanced  by  those  which 
a  different  environment  or  experience  developed 
in  others. 

The  education  or  qualities  which  under  certain 
conditions  have  brought  to  us  success  in  life  may, 
if  we  be  quickly  transported,  count  for  little  or 
nothing  under  other  suns.  The  Englishman,  sud- 
denly finding  himself  in  a  desert,  may  perish  for 
the  want  of  special  training,  while  those  whom  he 
<'alls  savages,  but  who  are  only  diiferently  edu- 
•cated,  may  there  find  sustenance  and  comfort. 
The  moral  qualities  which  enable  each  individual 
white  man,  conducting  himself  selfishly,  taking  no 
thought  of  his  fellow,  to  live  with  satisfaction, 
find  a  substitute  in  the  generosity  of  the  man  of 
the  wilds,  who  knows  little  of  individual  owner- 
ship, but  fully  recognizes  a.  natural  obligation  to 
his  less  fortunate  fellows.  The  austerity  of  one 
race  is  perhaps  offset  by  the  courtesy  of  another. 


142  DEMOCRACY 'ti  INTERNATIONAL  LAVv' 

Tlie  matter-of-fact  man  or  nation  finds  his  or  its 
counter-balancing  quality  in  the  imagination  or 
art-sense  of  another. 

It  turns  out,  on  thoughtful  examination  and 
widening  experience,  that  no  one  nation  is  at  all 
times  sufficient  unto  itself.  As  this  knowledge 
comes,  not  alone  to  one  country,  but  to  all,  the 
need  of  living  together  amicably  and  the  apprecia- 
tion of  the  labors  of  our  fellows  placed  by  force  of 
circumstances  under  different  surroundings  must 
with  time  grow  stronger  and  stronger.  We  shall 
perceive  that  the  words  of  Goldsmith,  spoken  of 
nations,  have  a  broader  meaning  than  he  had  in 
mind  when  he  wrote : 

*  *  *  if  countries  we  compare 
And  estimate  the  blessings  which  they  share, 
The '  patriots  flatter,  still  shall  wisdom  find 
An  equal  portion  dealt  to  all  mankind. 

Many  things  tend  toward  unity  of  feeling 
among  nations.  Every  traveler  Avho  crosses  the 
Atlantic,  whether  he  start  from  the  East  or  from 
the  West,  brings  about  a  better  understanding  be- 
tween nations.  Every  railroad  train  crossing  a 
frontier,  every  ship  plying  over  separating  waters, 
every  cable  conveying  news  from  foreign  nations, 
every  exchange  of  letters  or  business,  every  book 
of  travel,  every  useful  or  agreeable  article  of  for- 
eign production,  every  sale  of  our  own  produce  or 
manufacture  to  foreign  lands,  is  a  civilizing  agent, 


TENDENCIES  TOWAED  PEACE  AND  JUSTICE        143 

containing-  in  itself  the  germ  of  destruction  of  old 
national  prejudices  and  hates.  In  our  land  the 
traditional  stage  Irishman  or  German  or  Jew  is 
disappearing.  If  we  still  laugh  at  the  representa- 
tion of  a  foreigner  in  the  theatre,  it  is  not  empty 
ribaldry,  but  only  the  amusement  we  may  indulge 
in  over  the  foibles  of  our  best  friends.  Indeed,  we 
may  sympathize  with  the  pathos  of  the  position  of 
the  foreigner. 

We  borrow  from  other  nations,  sometimes,  it  is 
true,  tlie  worst,  but  more  often  the  best,  in  them. 
If  England  politically  gives  us  Adam  Smith  and 
John  Stuart  Mill,  we  return  our  ideas  of  political 
machinery,  and  from  an  American  author  Lloyd- 
George  has  found  inspiration  for  certain  of  his 
most  philosophic  utterances.  The  French  Pasteur 
and  the  German  Koch  teach  us  truths  beneficial  to 
humanity,  and  the  death  of  Tolstoy  left  a  score  of 
nations  mourning.  A  better  knowledge  of  Con- 
fucius and  a  sympathy  with  Chinese  aspirations 
causes  us  to  regard  the  individual  Chinaman  with 
a  new  forbearance.  The  deaths  of  Ambassadors 
furnish  us  opportunities  for  placing  American 
warships  to  a  more  friendly  and  therefore  a  saner 
use  than  was  ever  designed  for  them. 

There  is  a  leveling  process  going  on  among 
nations — leveling  in  more  senses  than  one.  We 
borrow  from  each  other,  as  shown,  institutions, 


144  democracy's  international  law 

literature  and  customs,  sometimes  appropriately, 
and  sometimes,  it  is  true,  making  misfits,  with 
grotesque  consequences.  At  all  events,  we  grow 
more  and  more  alike  in  externals,  which,  sooner  or 
later,  in  greater  or  less  degree,  affect  mental  atti- 
tudes and  attributes.  In  the  end  the  railroad  men 
of  lines  between  New  York  and  Washington,  Joppa 
and  Jerusalem,  must  resemble  each  other  in  their 
habits  of  mind  and  moral  qualities  more  than  did 
their  great-grandfathers.  The  parliamentarians 
of  Turkey  and  the  Congressmen  of  the  United 
States  have  infinitely  more  in  common  than  their 
forefather  sheiks  or  attendants  upon  New  Eng- 
land town  meetings  a  hundred  years  ago.  The 
bonds  of  sympathy  between  them  have  become  in- 
finitely stronger  and  have  multiplied. 

We  look  with  pitying  wonder  or  amused  con- 
tempt upon  the  state  of  mind  which  made  men 
separated  by  a  slight  obstruction  natural  enemies. 
Travel,  education,  the  press,  which  daily  sum- 
marizes the  striking  events  of  a  whole  world,  make 
the  whole  w^orld  kin  and  compel  a  sympathy  for, 
and  forbid  our  indifference  to  or  rejoicing  over, 
the  sufferings  of  any  portion  of  mankind. 

Day  by  day  and  year  by  year  this  sympathy 
grows.  Our  business,  using  the  world  broadly,  is 
no  longer  merely  the  business  of  our  little  neigh- 
borhood, our  city,  our  State,  our  nation.    It  is  the 


TENDENCIES  TOWARD  PEACE  AND  JUSTICE        145 

business  of  the  wide  world.  We  cannot  calmly 
regard  injustice  to  a  Chinaman  or  Jew  or 
Armenian  or  Spaniard  or  black  man.  We  may 
not,  without  accusing  consciences,  as  a  nation  in- 
flict injustice  upon  another  nation.  Our  actions 
must  measure  up  to  the  standard  of  justice  re- 
quired by  all  the  civilized  nations  of  the  world. 

The  self-respect  and  the  desire  for  the  respect 
of  others  which  prevent  a  stronger  man  from  com- 
mitting acts  of  physical  oppression  upon  a 
weaker  one  is  beginning  to  have  its  effect  upon  the 
dealings  of  a  great  nation  with  its  smaller  broth- 
ers. At  least  their  o^vn  citizens  grow  more  and 
more  critical.  And  this  feeling  grows,  as  I  have 
indicated,  out  of  the  regard  each  has  for  the  other, 
proceeding  from  the  realization  of  the  benefits 
each  brings  to  the  common  service  of  humanity. 
It  is  easier  to  be  brutal  to  a  slave  or  one  unpro- 
tected by  public  opinion  than  to  injure  a  co-worker 
who  brings  to  our  common  store  experiences  or 
qualities  mutually  advantageous.  We  are  build- 
ing up  humanity  to  a  common  level,  and  making  it 
generously  alive  to  the  interest  of  all,  irrespective 
of  race  or  nation. 

Buckle  was  unable  to  find  that  human  nature 
had  materially  changed  in  two  thousand  years. 
Fear  of  consequences  will  no  more  control  the  mad 
man  or  nation  of  todav  than  it  controlled  the  like 


146  democracy's  international  law 

in  ages  past,  but  the  things  which  provoke  anger 
will  disappear.  The  democratization  of  the 
world  is  minimizing  the  effects  of  the  private  am- 
bitions of  the  rulers.  The  development  of  the 
masses,  their  growing  intelligence  and  intercourse, 
is  making  them  regard  all  men  simply  as  co- 
workers— friendly,  not  hostile  rivals — in  the  fruit- 
ful vineyard  of  the  world.  If  all  this  be  true,  the 
world  is  preparing  itself  for  a  larger  measure  of 
justice  and  peace. 

Human  nature  is  not  changing,  but  politeness 
and  tlie  underljdng  ground  of  politeness,  sympathy 
and  recognition  of  common  needs,  is  growing  more 
universal.  Instead  of  fear  of  the  consequences  of 
war  leading  to  peace,  a  better  comprehension  of 
the  equality  of  the  individual  is  the  real  pacificator. 
A  hesitancy  to  condemn  men  unheard  to  suffering 
and  death — men  whose  rights  are  equal  to  our  owai 
— is  the  mainspring  of  modern  action.  That  this 
feeling  finds  scant  proclamation  signifies  little; 
that  it  exists,  and  is  growing  vnth  unparalleled 
rapidity  is  the  most  important  thing  in  civilization. 
Right-doing  between  nations  must  become  the 
practice,  as  contempt  for  the  national  wrong-doer 
becomes  w^orldwide. 


BASIS  OF  DEMOCEATIC  LAW  OF  NATIONS  147 

CHAPTER  XIII 

BASIS  OF  A  DEMOCEATIC  LAW  OF  NATIONS 

When  Watts,  as  the  story  goes,  watched  the  es- 
cape of  steam  from  his  mother's  tea  kettle,  he  dis- 
covered a  theory  of  expansion,  from  observing  the 
little  volume  of  water  converted  into  steam.  This 
theory  was  no  whit  different  from  that  today  illus- 
trated through  the  boilers  and  engines  dri\'ing  tlic 
largest  ocean  liner.  All  the  principle  was  illus- 
trated in  the  little  utensil  of  the  kitchen.  It  re- 
mained but  to  create  the  machinery,  a  work  which 
has  gone  on  with  increasing  perfection  for  150 
years.  Our  writers  of  International  Law,  finding 
States  in  existence  when  their  studies  began,  have 
forgotten  all  about  their  humble  origins  from 
which  principles  might  be  deduced.  Seeing  them 
w^lth  all  their  enormous  crudities  and  violences, 
writers  have  sought  to  regularize  the  conduct  of 
States  by  artificial  rules.  They  have  allowed 
themselves  to  be  influenced  by  the  size  of  the  ob- 
ject before  them,  as  if  size  alone  created  rights  and 
duties.  With  this  misconception  controlling  them 
they  have  created  a  crooked  International  Law. 
Their  action  has  been  quite  analogous  to  that  of 
a  man  who,  finding  a  tremendous  machine  capable 
of  being  run  by  steam,  wonders  why  it  does  not 
operate  when  he  floods  it  with  water.  The  living 
spirit  not  there,  the  machinery  can  not  function. 


148  demockacy's  international  law 

It  is  impossible  to  arrive  at  any  just  conclusions 
with  regard  to  International  Law  except  one  dis- 
cover its  true  spirit  by  considering  in  some  degree 
the  units  of  society  and  applying  to  the  nation  the 
principles  which  must  be  recognized  as  controlling 
its  units.  Stated  in  a  few  words,  all  the  Inter- 
national Law  that  has  any  right  to  be  may  be  sum- 
med up  on  the  lines  of  the  proper  conduct  of  an 
honest  man,  a  good  citizen,  and  if  you  will  the 
head  of  a  family.  This  for  us  is  the  steam  as  it 
escapes  from  the  tea  kettle.  In  so  far  as  Inter- 
national Law  as  applied  betw^een  nations  has  de- 
parted from  this,  exactly  to  such  an  extent  has  it 
poisoned  the  relations  of  nations,  and  with  its  con- 
nivance untold  miseries  have  been  inflicted  upon 
the  human  race. 

Let  us  consider  then  critically  for  a  brief  space 
what  we  expect  of  the  citizen  of  whom  we  have 
spoken.  He  must  be  faithful,  of  course,  in  the  per- 
formance of  his  obligations.  He  is  forbidden  to 
murder  and  to  rob.  He  can  not  by  chicanery  un- 
dertake to  obtain  the  goods  of  his  fellows.  Under 
the  plea  of  protecting  or  advantaging  the  members 
of  his  own  family,  he  can  not  by  any  subtle 
manoeuver  seek  to  gain  the  upper  hand  of  another. 
He  has  learned  to  curb  his  temper,  and,  offending 
no  one  by  trick  or  device,  conducting  himself  as  a 
gentleman,  he  is  not  likely  to  be   disturbed  by 


BASIS  OF  DEMOCRATIC  LAW  OF  NATIONS  149 

others.  Despite  his  strict  attendance  upon  all 
these  requirements  he  may  be  imposed  upon  or 
cheated,  but  it  will  not  occur  to  him  as  within  the 
limits  of  his  character  to  respond  in  kind.  He  will 
not  line  his  belt  with  revolvers  and  swagger  up 
and  down  the  market-place. 

If  these  be  among  the  criteria  of  the  good  citi- 
zen, we  may  ask  why,  when  for  reasons  of  conven- 
ience men  are  united  together  into  a  nation,  all 
these  principles  should  be  laid  aside?  If  Inter- 
national Law  is  to  make  us  over  into  citizens  of 
nations  frank  with  themselves,  all  will  come  to 
preach  and  practice  these  rules. 

We  may  safely  say  that  the  best  beginning  we 
can  make  toward  the  institution  of  real  Inter- 
national Law  is  to  try  to  make  over  ourselves  into 
a  fair-dealing  nation  in  the  fullest  and  most  exact 
meaning  of  the  term,  modeling  its  conduct  upon 
that  of  an  upright  man.  When  we  have  done  this 
our  work  will  be  recognized  and  will  have  its  in- 
evitable influence  upon  all  the  nations  of  the  earth 
as  a  ' '  good  deed  shines  in  a  naughty  world. ' ' 

But  you  say  we  are  honest.  We  do  pay  our 
debts.  We  comply  with  our  national  engagements, 
usually,  at  any  rate.  We  meet  all  the  require- 
ments. Sometimes  this  may  be  true,  but  how  far 
short  we  fall ! 


150  democracy's  international  law 

We  made,  years  ago,  in  the  four  quarters  of  the 
globe,  a  display  of  our  iiaval  strength  which  in- 
vited some  of  the  weaker  nations,  through  fear  or 
through  example,  into  military  expansion  which 
nearly  ruined  them.  We  made  Japan  feel  her  in- 
feriority on  the  seas  and  pushed  her  further  in  a 
race  for  naval  supremacy  which  has  had  a 
tremendously  injurious  effect  upon  the  toiling 
masses  of  Asia  and  has  reflected  back  upon  us  as 
justifying  our  increased  naval  expenses.  Was  our 
behavior  in  any  wise  different  from  the  indecent 
course  of  a  bully  parading  his  artificial  and 
natural  strength  before  his  fellow  citizens'? 

^  ,We  adopt  in  our  custom-houses  a  system  which 
interferes  with  the  trade  of  others  with  us,  and, 
under  the  guise  of  protecting  all  of  our  citizens, 
gives  pecuniary  advantages  to  a  few  at  the  expense 
of  the  many.  We  injure  the  free,  open  and 
natural  development  or  the  world.  We  make  of 
ourselves  in  this  respect  a  bad  neighbor,  and  one 
who  encourages  some  of  his  children  to  gain  ad- 
vantages if  possible  at  the  expense  of  the  others 
or  at  the  expense  of  the  neighbor's  children. 

If  Tarifa  levied  toll  on  commerce  in  and  out  of 
the  Mediterranean ;  if  Algiers  did  the  same,  with 
failure  marking  their  efforts,  are  we  justified  in 
thinking  our  more  refined  endeavors  will  win  us 
the  prize  and  Avill  give  us  a  crown  of  laurel  ? 


BASIS  OF  DEMOCKATIC  LAW  OF  NATIONS  151 

We  seek  by  other  policies  to  build  up  America  to 
the  disadvantage  of  other  nations,  deflecting  in- 
dustry and  capital  from  those  pursuits  which 
would  be  naturally  and  properly  gainful,  into 
others  which  may  only  be  gainful  through  coddling 
by  the  government. 

The  power  which  we  possess  over  the  Panama 
Canal — a  power  in  the  exercise  of  which  we  should 
only  act  as  a  trustee  for  the  whole  world — we  try 
to  turn  to  the  benefit  of  a  few  of  our  number,  seek- 
ing to  deceive  ourselves  with  the  idea  that  all 
Americans  share  in  the  advantage,  and,  as  if  this 
justifies  us,  that  the  only  person  to  suffer  is  the 
foreigner. 

Although  in  this  regard  our  offenses  have  been 
less  than  those  of  other  great  {i.  e.  large)  nations, 
we  send  our  navy  and  marines  to  protect  or  to  ad- 
vance American  investments  in  foreign  countries, 
— investments  which  as  a  nation  we  never  asked 
them  to  make, — while  as  a  nation  we  would  prefer 
a  natural  home  development  rather  than  one  which 
must  be  propped  up  by  bayonets. 

We  have  made  ourselves  feared  but  not  loved  in 
every  country  south  of  our  Mexican  border.  'We 
have  ignored  nationally  important  teachings  of 
good  international  citizenship.  Our  attempts  to 
take  advantage  of  our  neighbors  have  violated 
principles  of  righteous  International  Law. 


152  democracy's  international  law 

In  all  of  these  and  a  dozen  different  ways  we 
have  raised  up  and  are  continually  raising  up  for 
ourselves  enemies  in  every  quarter  of  the  globe, 
enemies  who  would  accept  our  downfall  with  per- 
fect equanimity  if  not  delight. 

If  our  nation  is  a  bad  citizen  of  the  world,  we 
can  not  excuse  ourselves  by  saying  that  others  are 
as  wrong  in  their  actions  as  we  are.  What  they 
do  is  primarily  their  affair.  Our  business  is  to 
do  right. 

If  we  would  know  whether  many  things  we  have 
done  are  right,  let  us  ask  ourselves  whether  we  do 
not  experience  a  feeling  of  resentment  when  any 
of  them  are  practiced  in  any  degree  by  other  na- 
tions toward  ourselves. 

Have  we  ever  put  to  ourselves  this  simple  ques- 
tion :  Do  we  do  the  things  just  mentioned  because 
we  expect  to  gain  for  some  or  all  of  us  a  selfish 
advantage  over  the  citizens  of  another  nation? 
Do  we  ask  ourselves  whether  or  not  the  gaining  of 
an  advantage  or  the  attempt  to  gain  one  by  such 
actions  is  vain  when  indulged  in  with  the  idea  that 
in  the  long  run  profit  at  the  expense  of  others  is 
possible? 

Is  the  man  honest  who  seeks  to  obtain  for  him- 
self or  family  an  advantage  which  may  only  be  had 
through  an  interference  with  the  natural  rights  of 


BASIS  OF  DEMOCRATIC  LAW  OF  NATIONS  153 

another?  Is  the  nation  which  pursues  such  a 
course  an  honest  nation?  The  individual  who  fol- 
lows such  lines  of  action  may  for  a  while,  perhaps 
even  for  his  lifetime,  reap  pecuniary  benefit.  He 
feels  his  punishment  in  the  want  of  public  confi- 
dence and  esteem ;  in  the  exposure  of  his  motives ; 
in  suits  in  court,  and  it  may  be  in  terms  in  prison. 
The  last  penalty  will  find  its  analogy  in  war,  so 
often  the  result  of  unrighteous  courses  pursued  be- 
tween nations.  With  punishment  in  view,  for  it  is 
inescapable  if  the  process  be  continued  long 
enough  and  be  sufficiently  extreme,  may  we  not 
ask  ourselves  wiiether  it  is  worth  our  while  as  a 
nation  to  be  less  honest  than  we  expect  an  individ- 
ual to  be? 

To  none  of  the  actions  of  which  we  have  spoken 
does  the  International  Law  of  today  impose  a 
negative,  and  yet  the  commencements  of  Inter- 
national Law  must  concern  the  actions  of  the 
nation.  Just  as  the  individual  in  society  is  re- 
quired to  do  no  wrong  if  he  would  escape  the  law, 
written  or  unwritten,  so  must  the  nation.  We  are 
justified  in  believing,  therefore,  that  the  Inter- 
national Law  of  today  is  without  substance,  for  it 
pays  scant  attention  to  the  duties  owed  by  one 
nation  to  its  fellow-citizens  in  the  society  of  na- 
tions.. Without  this  it  must  remain  a  vain  science 
— no  science  at  all. 


154  democeacy's  internatioxal  law 

The  course  which  has  been  suggested  is  not  an 
easy  one  to  pursue.  We  have  to  lay  aside  the  ap- 
parent (not  real)  monetary  advantage  of  today  to 
escape  the  certain  revenges  of  tomorrow,  but  we 
delude  ourselves  with  the  belief  that  tomorrow 
may  never  come.  In  indulging  in  this  delusion,  as 
has  been  heretofore  pointed  out,  we  ignore  all  the 
lessons  of  history.  We  forget  that  we  may  not 
even  levy  a  tariff  without  meeting  a  counter  tariff 
from  some  other  nation.  We  may  not,  in  fact,  mal- 
treat the  humblest  nation  for  the  benefit  of  a  few 
Americans  without  at  some  future  day  an  enemy 
finding  through  it  our  \Tilnerable  heel. 

Fatuously  we  say  *'It  must  never  happen 
again,"  and  with  all  the  strength  of  our  mercenary 
little  souls  turn  to  our  daily  business  of  sowing 
the  seeds  of  war  and  clinging  to  our  fool's  gold. 

We  may  indulge  in  the  thought  that  democracies 
will  do  no  wrong,  but  experience  is  against  us.  Be- 
sides this  we  need  not  forget  that  democracy  is  in 
the  making.  It  is  suffering  from  unforgotten 
feudal  practices.  Democracy  did  not  spring 
full  armed  from  the  brains  of  the  men  of  our 
American  Revolution.  It  is  as  yet  but  a  child,  sub- 
ject to  many  dangers  and  many  diseases,  and  hav- 
ing inherited  many  evil  tendencies  from  its 
predecessors. 

We  have  lost  100,')00  nien  in  a  European  war 


BASIS  OF  DEMOCEATTC  LAW  OF  NATIONS  155 

which  we  have  fondly  called  a  war  for  democracy. 
If  they  have  died  in  a  war  simply  to  maintain  and 
preserve  the  limited  and  halting  democracy  we 
have  today,  then  assuredly  their  sacrifices  have 
been  in  vain.  The  thing  for  which  we,  if  we  are 
thoughtful  at  all,  feel  that  they  have  perished  is 
to  insure  a  chance  that  the  democracy  of  today 
shall  have  free  scope  for  its  natural  development. 
We  know  that  it  is  now  disfigured  and  distorted  by 
inefficiencies,  corruptions,  and  ignorance,  but  we 
believe  that  it  has  in  itself  sufficient  reserve  of 
health  and  healing  power,  given  a  free  chance,  to 
bring  about  a  development  which  would  compare 
in  its  future  grandeur  with  that  of  now  as  the 
mightiest  engine  in  existence  or  conceived  of  at 
this  moment  compares  with  the  first  crude  attempt 
of  Watts  to  put  to  work  the  live  force  of  steam. 
To  this  end,  of  course,  our  dissenters  and  our  crit- 
ics of  government  must  be  encouraged  instead  of 
hampered,  as  is  so  often  the  case.  Even  in  their 
blunders  and  misconceptions  there  may  always  be 
some  element  of  truth  which  may  not  be  dis- 
regarded save  at  peril  to  the  Commonwealth. 

Let  us  turn,  however,  to  the  international  field. 
Here  we  find  the  aristocratic  idea  which  subordi- 
nates the  man  to  the  State  rampant  in  its  most  ob- 
jectionable and  terrible  forms.  International  Law 
needs  the  application  of  democratic  principles,  and 


156  democracy's  international  law 

thk  application  must  begin  with  a  careful  survey 
of  the  relations  of  the  individual  man  to  his  fel- 
lows. With  this  thought  in  mind  we  must  continue 
our  examinations  until  we  reach  the  largest  con- 
ceivable association  or  leag-ue  of  nations.  AAlien 
we  do  this,  we  shall  find  that  we  simply  carry  to 
their  ultimate  the  principles  of  democracy  as  we 
master  them.  We  can  then  develop  readily  for 
their  use  the  most  competent  machinery  our  knowl- 
edge enables  us  to  create  and  use. 

This  method  of  progression  has  not  been  fol- 
lowed. The  man  and  his  rights  and  duties  have 
been  lost  in  the  nation,  to  which  we  have  ascribed 
as  its  perquisite  abnormal  and  inhuman  qualities. 
When,  however,  guided  by  the  spiiit  of  democracy, 
we  learn  to  apply  it  to  larger  and  larger  groups  of 
men,  we  will  write  a  fresher  and  purer  Inter- 
national Law  than  has  yet  entered  into  the  dreams 
of  would-be  scholars. 

We  have  devoted  our  thoughts  to  the  machinery 
of  international  relations.  We  have  proposed 
courts  without  principles  to  guide  them.  We  have 
devised  administrative  agencies  without  any  com- 
prehension of  the  directions  in  which  they  should 
work.  We  would  create  a  Frankenstein  monster 
perfectly  capable  of  destroying  us,  because  desti- 
tute of  thought  or  principle  or  any  well-grounded 
restraining  influence.     The  results  of  worldwide 


BASIS  OF  DEMOCRATIC  LAW  OF  N-ATIONS  157 

stupidity  and  rascality  have  been  made  manifest 
on  a  thousand  fields  of  conflict  within  the  past  few 
years,  and  are  continuing  to  plague  us  in  this  time 
which  we  call  one  of  peace. 

In  our  democracj^  within  States,  we  require, 
theoretically  at  least,  equality  of  all  men  before  the 
law.  We  exact  equal  justice  to  all.  We  compel 
-equal  submission  to  the  mandates  of  the  law.  We 
allow  the  individual  the  equal  voice  in  the  making 
of  the  rules  of  conduct  his  status  as  a  man  justifies. 
We  believe  that  our  aspirations  in  these  respects 
should  extend  to  all  men.  And  yet  when  we  pass 
over  the  imaginary  lines  marking  our  national 
jurisdiction,  and  deal  collectively  with  groups  of 
men  associated  under  another  nationality,  we  col- 
lectively deny  to  them  those  rights  and  privileges 
accorded  within  our  own  borders.  We  become 
judges  in  our  own  cause.  We  claim  for  ourselves 
the  privilege  of  hampering  the  development  of 
others  lest  they  may  progress  faster  than  we  do. 
We  impose  our  will  upon  them.  With  these  denials 
of  justice  and  of  the  democracy  to  which  we  render 
freely  lip-service  at  home,  we  wonder  that  war 
continues. 

Since  1776  America  has  been  exercising  a  won- 
derful influence  upon  the  peoples  of  the  world. 
How  profound  it  has  been  was  not  appreciated  by 
the  governments  of  the  great  nations.    Their  rul- 


158  democracy's  international  law 

ers  have  but  just  welcomed  us  as  a  World  Power,, 
and  in^dted  us  to  share  the  world  with  them  and 
according-  to  their  principles.  The  brazen  and 
painted  materialism  of  their  older  civilization  now 
embraces  our  heretofore  somewhat  austere  youth 
in  loving  dalliance.  We  are  drinking  deep  of  the 
blood-red  wine  of  Hayti  and  Santo  Domingo.  Our 
''spheres  of  influence"  in  Mexico  and  Central 
America  are  our  gambling  tables,  with  human 
beings  as  our  "chips"  and  our  dice  fashioned 
from  the  taxes  on  our  people.  W^e  are  becoming 
world  ruffians  like  the  rest  and  influential  in  tne 
world  of  force. 

In  all  the  ways  we  have  described  we  are  sowing" 
dragon's  teeth  and  from  this  seed  we  expect  a  crop 
of  peace.  The  next  generation  or  two  will  reap  the 
harvest  we  so  carefully  prepared  for  them,  but 
what  have  our  grandchildren  over  done  for  us  that 
we  should  care  for  their  wellbeing!  And  mean- 
while all  written  law  is  silent,  or  at  most,  whispers, 
and  the  lessons  of  unwritten  law  are  unheeded. 


eesume  of  oue  conclusions  159 

CHAPTER  XIV 

EeSUMe  of  oue  CO^X^LUSIONS 

We  have  traveled  swiftly  and  it  may  be  super- 
ficially over  much  ground.  In  approaching  the 
end,  it  seems  advisable  to  make  a  summary  of  our 
progress. 

We  have  found  that  laws  mthin  the  nation  were 
properly  di'sdded  into  those  of  convenience,  in- 
volving no  particular  element  of  right  or  wrong,  a 
formal  decision  being  given  as  to  them  for  the 
benefit  of  all ;  next  there  was  adjective  law  which 
we  may  roughly  say  represents  law  in  action,  and 
relates  to  the  method  and  manner  of  enforcement 
of  all  other  legal  directions,  and  lastly  was  that 
law  which  involved  fundamental  ideas  of  right  and 
wrong.  We  have  discovered  that  this  third  branch 
of  law  has  been  developed  from  time  to  time  as 
mankind  has  learned  that  the  consequences  of  cer- 
tain human  actions  w^ere  injurious  to  the  social 
welibeing  and  hence  w^rong.  It  has  been  deduced 
that  they  represented  infractions  of  that  natural 
law  v/hich  envelopes  society  from  the  instant  of  its 
formation.  Thus  we  have  concluded  that  if,  by 
way  of  example,  murder  instead  of  being  socially 
a  destnictive  act  had  been  found  beneficial  in  its 
consequences,  no  law  would  have  forbidden  it,  but 


160  democracy's  international  law 

being  socially  niiscliievous  mankind  perceived  it 
violated  a  fundamental  law  later  framed  in  words. 

We  then  turned  to  the  field  of  International  Law 
and  found  it  unsystematized.  As  in  the  state,  there 
exists  conventional  law  as  represented  by  a  great 
variety  of  treaties  relating  to  matters  in  them- 
selves indifferent.  These  are  ordinarily  observed 
by  nations.  We  found  also  that  there  was  an  ad- 
jective law  which  concerned  itself  with  the  meth- 
ods of  bringing  into  force  the  treaty  provisions  re- 
ferred to  as  well  as  in  some  extremely  rare  cases 
carrying  out  what  we  next  styled  true  Interna- 
tional Law.  We  were  perplexed  to  learn  that  the 
students  of  International  Law  up  to  the  present 
time  had  not  particularly  concerned  themselves 
with  the  fact  that  there  is  a  right  and  wrong  in 
international  affairs  or  that  the  violation  of  rules 
of  right  internationally  results  in  difficulties  be- 
tween nations.  They  had  not,  in  short,  traced 
back  acts  injurious  to  the  society  of  nations  to  the 
real  International  Law  which  had  been  broken,  al- 
though such  law  had  been  demonstrated  to  exist 
through  the  effects  of  its  violation. 

In  our  search  we  have  fully  recognized  that  if  we 
would  learn  what  true  International  Law  is,  aside 
from  easily  accepted  conventions,  we  have  to  dis- 
cover the  relation  between  action  and  reaction 
as  illustrated  bv  the  conduct  of  nations  between 


eesume  of  oue  conclusions  X61 

themselves.  International  evils  existing,  we  agree 
as  a  fact  that  some  law,  even  though  unwritten,  is 
being  violated. 

Finding  in  the  manner  above  indicated  of  what 
International  Law  consists,  we  have  asked  next 
the  question  whether  there  can  be  such  a  thing 
as  the  laws  of  war,  discussion  with  relation  to 
which  plays  so  large  a  part  in  books  of  what  aro 
called  International  Law.  We  were  at  once  forced 
to  the  conclusion  that  it  is  as  impossible  to  sys- 
tematize war  as  it  would  be  to  systematize  disease ; 
that  the  laws  of  war  are  grounded  on  no  ethical 
reason;  bears  no  relation  to  right  and  are  incap- 
able of  enforcement.  At  best  they  are  but  tempor- 
ary usages,  without  binding  force. 

In  further  consideration  of  the  subject  of  ac- 
cepted International  Law,  wo  have  found  its  origin 
among  the  immediate  servitors  of  kings,  and  that 
it  is  based  upon  the  theory  of  kingly  sovereignty, 
a  theory  which  is  inconsistent  in  itself,  and,  in 
the  present  state  of  the  world,  highly  anarchistic. 

We  have  discussed  the  meaning  of  *' national  in- 
terests," finding  that  men  have  been  deceived  by  a 
word  and  that  the  so-called  national  interests  are 
simply  the  interests  of  a  few  men,  who  for  the  time 
occupying  positions  of  influence  and  importance 
within  the  nation  are  able  to  control  in  a  large 


162  democracy's  international  law 

measure  the  operations  of  the  ;D'overnment.  We 
were  led  to  suspect  from  this  consideration  that 
at  present  the  control  of  democracy  over  foreign 
affairs  scarcely  exists,  although  the  democratic 
theory  must  prevail  between  as  well  as  within 
nations  if  the  interests  of  the  common  man  in- 
stead of  the  interests  of  a  few  are  to  dictate  the 
course  of  human  affairs. 

This  brought  us  back  to  the  further  considera- 
tion of  tlie  nature  of  International  Law.  We 
found  that  from  being  the  simple  thing  that  it 
should  be,  it  has  been  made  complex;  that  its  pro- 
fessors being  without  imagination  have  never  un- 
derstood that  there  w^as  a  comparative  jurisprud- 
ence offering  a  great  field  for  their  thoughts  and 
a  solid  foundation  for  the  science  they  profess 
to  teach.  This  law  controlling  within  the  State  fur- 
nished the  rule  that  whatever  was  wrongful  infra- 
state,  must  of  necessity  be  wrongful  interstate.  In 
this  connection  we  indicated  the  manner  in  which 
tlie  true  student  of  International  Law  must  here- 
after gather  together  his  data,  from  which  data 
he  will  be  able  to  deduce  in  detail  the  basic  prin- 
ciphvs  with  wliicli  ho  nuist  liave  to  deal. 

Pursuing  our  subject  further  we  proved  that  the 
same  theory  which  has  been  worked  out  within  the 
nation  establishing  individual  rights  would  liave 
to  furnish  us  the  working  basis  of  International 


eeSume  of  our  conclusions  163 

Law;  that  proceeding  in  this  line  we  shall  find 
that  the  victor  has  no  right  to  control  the  lives  or 
properties  of  the  vanquished;  that  the  nation  su- 
perior in  power  is  not  justified  in  exploiting  the 
inferior  nation.  We  have  shown  through  different 
examples  that  imperialistic  adventure  carries  such 
punishment  as  to  demonstrate  its  antisocial  inter- 
national characteristics,  and  therefore  its  want  of 
basic  right  in  the  laws  of  nations. 

We  pointed  out  the  inefficiencies  of  international 
courts  so  far  organized  and  the  fact  that  it  is 
necessary  for  us  to  have  a  working  basis  of  law — 
a  worthy  end  to  which  to  work — before  we  need 
concern  ourselves  much  about  the  instrumentalities 
which  are  to  carry  it  into  elf  ect. 

We  dwelt  upon  the  fact  that  under  existing  con- 
ditions nations  are  determinedly  opposed  to  sub- 
mitting to  arbitration  matters  affecting  their 
honor,  \'ital  interests  and  independence,  but  we 
showed  that  these  ^.re  the  very  things  which 
should  be  the  subjects  of  judicial  examination, 
competent  rules  of  law  first  being  established. 

The  essentials'  of  peace  and  war  have  not  been 
overlooked,  and  we  have  indicated  that  our  defini- 
tions of  these  conditions  must  needs  be  revised; 
that  during  long  periods  of  so-called  peace  we  were 
in  fact  engaged  consciously  or  more  often  uncon- 
sciously, and  as  actively  as  we  knew  how,  in  ir- 


164  democracy's  international  law 

ritating  assaults  upon  the  prosperity  of  other 
nations,  and  that  only  by  an  abuse  of  language 
could  such  a  period  of  time  be  termed  peaceful. 

We  have  pointed  out  that  mere  resolutions  in 
favor  of  peace  are  not  more  than  pious  ejacula- 
tions and  that  the  standpoint  of  the  peace  advocate 
should  be  that  of  a  student  of  the  causes  of  dis- 
eases breding  hate  and  war ;  that  war  is  being  con- 
stantly generated  today  in  times  of  so-called  peace, 
this  through  our  constant  yielding  to  our  desire  to 
take  advantage  of  our  neighbors. 

The  attempt  has  been  to  show  the  close  anal- 
ogy between  the  position  of  the  man  in  municipal 
society  and  of  the  nation  in  international  society. 
We  have  concluded  that  the  advancement  of  our 
knowledge  of  International  Law,  an  International 
Law  which  menas  something  to  the  happiness  of 
the  world,  must  be  based  upon  such  a  study. 

In  the  present  condition  of  the  world's  progress 
in  the  science  of  government,  we  have  accepted  the 
democratic  principle  as,  for  the  present  at  least, 
the  last  word  in  government.  We  point  out  how  it 
benefits  the  common  man.  Up  till  now,  however, 
the  principles  of  democracy  have  not  been  applied 
to  the  international  field.  Nations  are  autocratic, 
brooking  no  superior.  The  result  has  vitiated 
largely  the  good  we  had  a  right  to  expect  to  come 
from  the  growth  of  the  democratic  principle.    If 


Resume  or  our  conclusions  x()5 

wo  would  progress,  therefore,  internationally,  con- 
ditions must  be  reversed.  Instead  of  allowing 
aristocratic  and  autocratic  law  to  vitiate  democ- 
racy, democracy  must  be  given  its  clear  chance  to 
purify  the  domain  of  what  erroneously  today  is 
called  International  Law.  Democracy  can  only  ac- 
complish this  purification  by  sternly  thrusting 
aside  the  suggestions  of  the  old  International  Law 
and  forming  its  own  Law  of  Nations  based  upon 
those  fundamental  principles  of  right  and  wrong 
which  democracy  recognizes  as  existing  and  as 
appropriate  between  man  and  man. 

We  have  recognized  the  fact  of  course  that  the 
democracy  of  today  is  lame,  halting  and  imperfect ; 
that  we  are  obliged  as  good  citizens  to  devote  our- 
selves to  its  perfection  and  purification ;  that  until 
this  takes  place  International  Law  as  based  upon 
the  law  of  democracy  of  today  must  of  necessity 
be  imperfect.  But  despite  this  condition  it  ir 
manifest  enough  that  even  an  approximation  in 
international  relations  to  the  fundamentals  of 
democracy  as  today  understood  would  bring  in  its 
train  a  wonderful  worldwide  relief  to  the  common 
man. 


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luuiiiituiiijui. 
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iiliiriiiMiiiiiiiiilH  III 

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>|MtlllllllllIllllllflllii 


